Knudson v. Hekla Fire Insurance

75 Wis. 198 | Wis. | 1889

LyoN, <T.

By the terms of the policy in suit, the rendering of sworn proofs of loss to the defendant company, within thirty days after the destruction of the property by fire, is a condition precedent to the right of the plaintiff to recover in this action. That such proofs were not so rendered is undisputed. Hence the plaintiff is not entitled to recover on the policy, unless the company has waived such proofs. The plaintiff claims that it did waive them, and relies exclusively upon the conversations with McCurdy and Gilbert to establish such waiver.

Gilbert was a local agent of the company, and as such insured the plaintiff’s property. Some of the conversations relied upon were with Gilbert alone. An objection to the admission of testimony of what Gilbert said on those occasions was made on behalf of the defendant company. The objection should have been sustained and the testimony ex-eluded. There is no proof that Gilbert had anjr authority in the premises, beyond that of an ordinary local agent. "Whatever power he may have had when he made the contract of insurance to waive conditions in the policy, he had no power, by its terms, as a mere local agent, to waive such conditions afterwards. It was so held in Hankins v. Rockford Ins. Co. 70 Wis. 1. "We must therefore exclude from our consideration of the case the testimony of such conversations with Gilbert alone.

There is another ground upon which such testimony should be excluded. The alleged waiver by Gilbert was verbal. It is provided in the policy that “agents' have no 'authority to make any verbal agreement whatsoever for or on behalf of this company; and this company will not be liable for any agreement except such as shall be indorsed, signed, and dated in writing on this policy.”

Eor the purposes of this appeal it will be assumed that McCurdy, who testified that he was the general agent and adjuster of the defendant company, was competent to make a valid waiver of proofs of loss, and that he might make the same bjr parol. Did he do so? The question must be answered in the negative. It does not appear that anything was said by him to the plaintiff or his son concerning proofs of loss, except Gilbert testified that McCurdy said to plaintiff’s son, 'who repeated it to his father: “ If you don’t have an offer to make, then the whole thing stands just as if we never saw you. You have the polic}^ to rely upon, and you must prove vour loss if you have got any to make.” The subject was not otherwise alluded to in the conversation between them. There was no denial by McCurdy of defendant’s liability on the policy, nor was anything said inconsistent with the theory that if the matter was not then settléd McCurdy expected the plaintiff would make such proofs as are required by the policy. Nor was anything said which gave the plaintiff the right to believe that he was relieved from making suoh proofs. All reasonable inferences from the conversation as detailed in the testimony are to the contrary. Neither was any act required of the plaintiff by McCurdy, the doing of which would estop the company to assert the obligation of plaintiff to render such proofs. Moreover, the plaintiff was negotiating with McCurdy concerning a contract in which he agreed that “ it is an essential element of the consideration for the insurance under this policy, that no action taken preliminary to an adjustment of a claim, to ascertain the amount and validity of such claim, shall be considered or treated as a waiver of any of the rights of this company.”

The proofs in this case are not as strong for the plaintiff as they were in Engebretson v. Hekla F. Ins. Co. 58 Wis. 801, in which case this court sustained a nonsuit for want of any proof of a waiver bjr the company of a stipulation in the policy.

There being no competent evidence of a waiver by defendant of the rendition of due proofs of loss, the motion for a nonsuit should have been granted. The same having been denied, the jury should have been instructed to find for the defendant.

Other errors are assigned, .but it is unnecessary to consider them.

By the Court.— The judgment of the circuit court is reversed, and the, cause will be remanded for a new trial.