1 N.D. 167 | N.D. | 1890
This action is based upon a hail insurance policy issued by the defendant from its office át Chamberlain, Dak, and sent from there by mail to the plaintiff. The policy bears date May 13, 1885, and was issued in consideration of the receipt of a premium note for $70, executed by the plaintiff
By its answer, defendant admits issuing the policy upon the plaintiff’s written application therefor annexed to the complaint, that no part of the loss has been paid, and that the premium note was not due when the loss occurred. “And for further answer defendant alleges that said policy of insurance contained the following covenant, viz.: ‘Now, therefore, the capital stock and securities of said company shall be subject to make good unto the said assured, at the specified rate and terms of Schedule No. 2, on the back hereof, at 70 cents per acre, his, her, or their heirs, executors, administrators, or assigns, all such immediate loss or damages as may occur by hail to growing crops as above specified, described and located, and as set forth in the application for this insurance, but not exceeding the cash value thereof, nor the interest of the assured in the property, nor the average yield per acre, as provided herein, for the term of six months, from the 6th day of May, 1885, at noon, to the 6th day of November, 1885, at noon, and to be paid according to the terms and conditions hereof, but not until requisite proofs, duly sworn and certified to by the. assured and one disinterested party, are received at the office of the company in Chamberlain, Dakota. But in no case will this company be liable for any loss or damage that may occur seven days after the crops hereby insured shall have matured.’ That the plaintiff has wholly failed to make any proofs of loss certified and sworn to by assured and one disinterested party, and that the plaintiff has not in any manner furnished to this defendant, at any time before the commencement of this suit, at the office of the company in
And defendant, further answering, alleges that the said policy of insurance contained the following covenant and agreement: ‘It is also mutually agreed and made a part of this contract that no suit or action for the recovery of any claim for loss or damage under this policy shall be sustained in any court of law or equity until after an award, on demand of either party, shall have been made by arbitration in the manner hereinbefore provided, nor uidess such suit or action shall be commenced before the expiration of six months next ensuing after the loss ; and, unless such suit or action shall be commenced within the said time, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute to the contrary -notwithstanding.’ That this action was not commenced within six months from the date upon which said alleged loss occurred; that the said suit was commenced on March 2i, 1888. And defendant for further answer alleges that the policy of insurance so issued, contained the following covenant, viz: ‘Assured’s application, of even number and daté herewith, on file in the office of the company, in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of assured, and the basis upon which this insurance
The action was tried by the court without a jury, and the trial court made and filed its findings of fact and law upon which judgment was entered in favor of the plaintiff for the amount of the claim, less the sum due on the premium note, which is pleaded as a counter-claim. Defendant appeals from the judgment. A bill of exceptions was settled, and a motion for a new trial was denied. The findings of fact are as follows: “That the defendant made, issued, and delivered to the plaintiff its insurance policy as set forth in the complaint herein and that the application for said insurance policy, signed by the plaintiff, is the application set forth in said complaint, and attached thereto as part thereof, and marked ‘Exhibit B. ’ That the following answer to the following question in the said application was at the time the same was written untrue and false, tó-wit: ‘Question. Are your lands incumbered? If yes, for how much? Answer. Three hundred dollars.’ That the said lands were at the same time incumbered for an amount exceeding one thousand dollars; that the following answer to the following question in said application was at the same time untrue and false, to-wit: ‘Question. Are the crops on the above-described land mortgaged of otherwise incumbered? If so, for how much? Answer. No.’ That the crops on the said land were in fact at said time mortgaged for a greater sum than seven hundred dollars; that one Strong was the agent of the defendant for the purpose of taking applications for hail insurance in Grand Forks county, Dak., and forwarding the same to the defendant company at the time
We have carefully examined the testimony contained in the record, and find that the findings of fact as made by the trial court are amply sustained by the evidence. The policy provides that “ no suit or' action for the recovery of any claim for loss or damage under this policy shall be sustained in any court of law or equity unless such suit or action shall be commenced before the expiration of six months next ensuing after the loss.” This action was not brought within the time limited, and would have been barred at common law for that reason, but the stipulation limiting the time is void under a provision of our Civil Code. Comp. Laws, § 3582. There is no substantial conflict in the testimony. The main questions arise upon evidence not controverted, and upon the facts as found by the trial court. Do such facts and such evidence warrant the judgment in plaintiff’s favor? This question is far from being one of easy solution in view of the irreconcilable conflict found in the authorities bearing upon the various points involved.
It is conceded that the answers contained in plaintiff’s written application for the insurance, which relate to incumbrances upon the land and upon the crop insured, are untrue; but the learned counsel for the respondent contends that such answers relate to matters wholly immaterial, and, as counsel claims, do
But it is further contended by respondent’s counsel that defendant is estopped from claiming a forfeiture of the policy on account of the false answers as to incumbrances contained in the application for the reason that such answers were wholly unauthorized by the plaintiff, and were falsely written into the application by E. E. Strong, the soliciting agent, despite the
The defendant sent its policy direct to the plaintiff, and the latter had possession of it some months prior to the loss. A copy of the application, containing the false answers as written by the agent, was indorsed upon the back of the policy, but such indorsement was not referred to in the body of the policy. The trial court found that the plaintiff did not at any time object to the answers as stated in the application, or request the defendant to correct the same. The evidence, however, is con-
Applying the law to the facts, the policy in question was defeated in its very inception; and, by reason of plaintiff’s silence as to the fraud, the policy never, attached to the risk. Comp. Laws, § 4164. But a forfeiture may be waived by a party entitled to its benefit. In this case there is no claim of an express waiver. The trial court found “that, at the time of the service of defendant’s answer to the plaintiff’s complaint in this action, the défendant had full knowledge of all the facts constituting the grounds of forfeiture of said policy, and, with such knowledge, and by way of counter-claim in its said answer, defendant seeks to recover from the plaintiff the amount of the premium note given by said plaintiff as a consideration for the issuance of said policy, and by so doing has waived all forfeiture of said policy.” "We think this conclusion of the trial court is correct. To counter-claim upon á premium note is equivalent to an independent action by the defendant against the plaintiff to recover the stipulated consideration for carrying the risk. After full knowledge that the claim was fraudulent in its inception, and consequently that the policy was voidable' at the option of the company, the latter saw fit to make demand of its' premium by a counter-claim in the answer. It is well settled by the adjudications' that the receipt of premium after knowledge of forfeiture operates to waive the
The case.would have been widely different if the defendant had elected to stand only on the other defense pleaded in the answer to the complaint. The defense that the plaintiff sued too late, or that the requisite notice of loss, or preliminary proofs of loss, were not furnished, are all and singular such defenses as do not go to the original validity of the note and policy, and, whether any and all of such defenses, are true or untrue, would not affect the validity of the note or the policy as original contracts. It follows that pleading the counter-claim would have been entirely proper, if set up only in connection with the last-mentioned defenses, and would not have operated to estop the defendant of availing itself of such defenses. But the defendant has not seen fit to pursue that course, and must accept the consequences of the election it has made to sue for the premium with full knowledge of the forfeiture of the policy for fraud in its inception.
The policy provides that the loss will be paid according to the terms and conditions of the policy,-“but not until requisite proofs, duly certified and sworn to by assured'and one disinterested party, are received at the office of the company in Chamberlain, Dakota.” The insurance was for the term of “six months, from the 6th day of May, 1885,' at noon, to the 6th day of November, 1885, at noon”’ The policy further provides: '“'All loss and damage under this policy shall be due and payable
It is not claimed that the defendant, either expressly or by conduct, waived the proofs of loss, or that anything was said or done by any of the defendant’s agents calculated to mislead the plaintiff, or put him off his guard as to the duty of furnishing the required proofs of loss until more than four, months after the loss occurred, and not until December, 1885, at which date the letters were written which are now claimed as a waiver. The letters .are as follows:
“Exhibit A. Larimore, Dakota, Dec. 16, 1885. The Dakota Fire and Marine Insurance Co., Chamberlain — Gentlemen: At the instance of Mr. W. E. Johnson, I write you in reference to his policy No. 514 for hail insurance in your company. Mr. Johnson has complied with the conditions imposed by your agent when here, and sent in his papers quite a long time ago. He also saw your general manager, Mr. English, in Grand Forks,about November 10th last, who promised to let him hear from the company upon his return. Nó word has yet been received by Mr. J., and the time, December 1st, wherein the policy promised final settlement for any loss shall be made, has passed. Mr. Johnson is thus kept in ignorance of your intentions, and is without a word of any kind from you. He desires me to say, if settlement for his loss is not made before January 1st prox., he will enter suit to bring about-the same. Yery respectfully, W. N. Boach.”
“Exhibit B. Chamberlain, Dakota, Dec. 22, 1885. W. N. Boach, Esq., Larimore, Dakota — Dear Sir: Beplying to yours of the 16th inst. in regard to loss under policy 514, issued to W. E. J ohnson, we beg to say we are in possession of some facts in regard to this insurance which, unexplained, would lead us to reject the loss, and resist its payment in court, if necessary,though this position we do not yet take, and hope we shall not be compelled to. Will give you definite answer as soon as, in due course of mail, we can receive answer to letter already*186 written for further information in reference to this case. We do not ask you to wait on us, but suggest that, upon receipt of information above referred to, if our attorney advises us that we are probably liable, or even that he is in doubt as to our liability, we shall at once adjust and pay the loss. Yours, truly, A. G. Nell am.”
Exhibit B is relied upon as the sole evidence of waiver. It was written more than four months subsequent to the loss, and more than one month, under our construction of the policy, after the time limited for furnishing the proofs had expired. The record does not disclose a case where defective proofs of loss have been forwarded to the company, and retained without objection, nor a case of mere delay, followed by a tardy furnishing of the proofs, but a case of an entire failure to make out or furnish the stipulated proofs within the time, or at all. Plaintiff's counsel cite Brink v. Insurance Co., 80 N. Y. 108; Titus v. Insurance Co., 81 N. Y. 410; O’Brien v. Insurance Co., 52 Mich. 131, 17 N. W. Rep. 726; Insurance Co. v. Kranich, 86 Mich. 289, and other authorities, sustaining the now well-established doctrine that after as well as before a breach in the condition of a policy of insurance requiring proofs of loss the company may waive the forfeiture caused by such breach either by “an express waivei*, or by acts or conduct from which an intention to waive is expressly inferable.” Brink v. Insurance Company, supra. And such waiver can be made without a new consideration, and by conduct which does not amount to an estoppel. Id. But in all of the cases cited, and in all others examined by the court where a waiver of forfeiture caused by non-service of proofs of loss has been held sufficient, there has been present the element of repudiation by the company of all liability under the policy for some reason other than the omission to furnish proofs of loss. Where, aside from non-production of proofs of loss, the company repudiates all liability, it would be useless and unavailing to furnish the proofs; and in such cases the insured is excused for their non-production. We are of the opinion that § 4179, Comp. Laws, declaring that “ delays in the presentation to an insurer of notice or proof of loss, is waived, if caused by any act of his, or if he omits to make
The remaining question is this: Has defendant waived the forfeiture caused by the omission to furnish proofs of loss by its acts or conduct since the forfeiture occurred? The position is taken by plaintiff’s counsel that the correspondence between plaintiff’s agent and defendant, found in Exhibits A and B, contains evidence of the waiver of the forfeiture caused by non-service of the proofs of loss. We think counsel are correct in this position. In the letter of December 22,1885, allusion is made to certain facts within defendant’s knowledge which, if unexplained, would lead defendant to reject the loss, and resist its payment in court. What particular facts are here referred to does not appear by the letter, or elsewhere in the record. But it is quite clear that such facts could have nothing to do with the non-service of proofs of loss. No letter of inquiry would have been necessary to elicit further information concerning the fact of non-service of proofs of loss. That fact was well known to defendant when the letter, Exhibit B, was written, and was of a nature not susceptible of explanation, but was a fact complete in itself without explanation. On December 22d, when defendant’s letter was written, it was already too late, under the policy, to furnish the proofs of. loss, and none had been furnished. This default was fatal to plaintiff’s claim, if defendant saw fit to insist upon it. Whether this forfeiture would or would not be insisted upon as an excuse for non-payment of the loss was a question turning upon defendant’s views of duty and of business policy, and was not a matter concerning which defendant would need new light or information to be sought for and obtained by correspondence. Again, it appears from defendant’s letter that the defendant was intending to submit the question of its liability to its attorney as soon as, in due course of mail, it should receive cer
Our conclusion is that defendant had written for, and was in quest of, information relating to some matters in regard to the insurance other than the non-service of proofs of loss. This view is strengthened by the unqualified promise contained in defendant’s letter to “at once adjust and pay the loss” if the information already written for should turn out to be of a nature which should create a doubt of defendant’s non-liability in the mind of its attorney. But it appears by the letter of December 22,1885, that defendant was at that time already in “possession of some facts in relation to this insurance” which would lead the defendant to “reject the loss and resist its payment in court,” unless such facts should be' explained by information already written for, and expected to reach the defendant by due course of mail, if' it came at all. Furthermore, by this letter defendant promised to give plaintiff a definite answer “in reference to the case,” as soon as, “in due course of mail,” the defendant received an answer to its letter of inquiry. Suit was not brought upon the claim for more than two years after the date of defendant’s letter, but in that interval.of time the defendant did not see fit to communicate with the plaintiff, nor send its promised “definite answer” to plaintiff’s demand of payment. From defendant’s long silence, we infer that its original conclusion to reject the claim, which had been reached in December, 1885, had not been changed by any fact that came to its knowledge after that date, in reply to its letter of inquiry or otherwise. Briefly summed up, the position is as follows: Defendant, on or prior to December 22, 1885, had conditionally decided to reject the claim on certain grounds which it did not disclose to plaintiff, but which grounds had nothing whatever to do with the non-service of proofs of loss, and on said date defendant refused payment of the claim on such other grounds. The refusal to pay on other grounds brings the case within the rule of the authorities already cited. The court is of the opin
Rehearing denied.