McCann v. Ætna Insurance, 3 Neb. 198

McCann v. Ætna Insurance

3 Neb. 198 | Neb. | 1874

Gantt, J.

The plaintiffs claim that on the eleventh day of October, 1865, they made a verbal application to the agent of the defendant for an insurance on the one-half of the steamboat Sunset, and that the defendant by its agent, James Sweet, accepted such application, and agreed to take the risk. The defendant denies the alleged contract of insurance on the steamboat, and makes several other defenses. Considerable testimony was taken in the case, but the substance of all the testimony in respect to the alleged contract is that of McCann, one of the plaintiffs, that on the day above stated, he went to the office of James Sweet the agent, and by verbal agreement with him as the agent, he effected an insurance on the one-half of the steamboat in the Ætna Insurance Company, and that this conversation was the only one in which he made a direct application for such insurance; also that of James Sweet, the agent, that no such contract of insurance was made; that he told McCann he could not issue such policy, *206but that be could take bis application and send it to tbe office of tbe general agent, and that McCann quickly left his office without leaving a written application; and that of S. H. Calhoun stating that he was in the office of Sweet at the time the conversation occured between McCann and Sweet, and that Sweet formally told McCann he would write to the company and see if they would take tbe risk; that be expressly said be could not issue a policy on the hull of the boat, but it must be done by the home office, and that McCann left the office within five minutes after he entered it. It seems that Calhoun was the only person present at the time of the conversation between McCann and Sweet, and therefore all the testimony in regard to the conversation, and alleged contract of insurance is that of these three persons. "We think this testimony is not sufficient to maintain the allegations of the petition. That of McCann stands without any support whatever; while that of Sweet is corroborated by that of Calhoun. And the most favorable construction which can be put on all this testimony for the plaintiff still leaves the matter in very great doubt.

In Suydam v. The Columbus Insurance Co., 18 Ohio, 459, the rule is laid down, that in an action against an insurance company to compel it to issue a policy upon an alleged contract of insurance, such action cannot be sustained, unless there is conclusive proof that such contract was actually made. If the matter is left in doubt upon the whole evidence, the suit must be dismissed. Neville, et al., v. The Merchants and Manufacturing Insurance Company, 19 Ohio, 452. 2 Parsons on Contracts, 351.

But suppose the evidence was sufficient to establish a parol contract of insurance between the parties. Have the plaintiffs placed themselves in a position to secure a right of action, and maintain their suit to recover damages for the loss sustained by the sinking of the boat?

The assured, sustaining loss, is required forthwith to *207give notice to the company or its agent, and as soon as possible thereafter to make and deliver in a particular account of such loss, signed and sworn to by him, together with a statement of the whole value of the subject insured, his interest therein, and when and how the loss originated so far as he knows or believes. All these requirements are conditions precedent to be performed on the part of the assured, and until such statements and proofs are produced, the loss shall not be deemed payable. It is said that the “ assured cannot be presumed to be ignorant of the usages of the office to which he applies for insurance,” and the law will not permit him on the ground of ignorance to claim exemption from producing the notice, statements or preliminary proofs, so indispensable to his demand of payment; at least all such proofs as may be in his knowledge or possession touching the nature and extent of the loss. And it seems to be the well settled doctrine in this country that the notice and statements, supported by oath, are conditions precedent, and must be performed before the assured is entitled to receive payment or sue for the loss, unless the company by some act on its part waives the performance of said conditions. Angell on Insurance, Sec. 226. Columbus Insurance Co. v. Lawrence, 2 Peters, 53. Same v. Same, 10 Peters, 513. Haff v. Marine Ins. Co., 4 John, 135.

In the case at bar, it appears from the proofs that the plaintiffs did not comply with these conditions precedent, except that a copy of protest was either left with or shown to the agent.

If in law the plaintiff could, on the ground of ignorance, claim exemption from producing the preliminary proofs, yet in this case they could not be permitted to plead such ignorance, for the proofs show that they were fully notified to produce such statement.

J. B. Bennet, general agent for the company, testifies *208that McCann called, at his office in Cincinnati, Ohio, and. in their conversation he “ distinctly requested him to submit the proofs of his loss, to reduce the statement of facts to writing and verify them by oath, to produce a protest and submit any facts bearing directly or indirectly on his claim.” McCann, in his testimony, fully corroborates this testimony of Bennet; he says “ Bennet informed me that no statement of the facts or proofs had been received by him, and that he could not settle the matter — that there were many questions arising from the peculiar facts of the case, etc.;” that he “returned to Nebraska City, called on Mr. Sweet and asked him if he was prepared to pay the loss; he said he was not, and I brought the suit against the defendant.” The statements, etc., were demanded of McCann and he refused to furnish them, and therefore the loss alleged to have been sustained by the sinking of the boat was not payable; and without the production of these proofs, certainly the agent' might well ssty that he was not “ prepared to pay the loss.” The failure of plaintiffs to produce these preliminary proofs, we think are sufficiently' pleaded in the answer. ' It is true the defendants plead other defenses in their answer, but that does not relieve the plaintiffs from the performance of the conditions precedent. “ Good faith and fair dealing is of the essence of the contract of insurance,” but the evidence shows that the plaintiffs have not so acted in the premises. They failed to produce the preliminary proofs, and when requested to do so they refused, and brought their suit; and as the alleged loss is not payable until these conditions precedent have been performed they cannot maintain their action.

Mr. Justice Maxwell concurring, the judgment must be affirmed.

Judgment affirmed.