Merchants' Mutual Insurance v. Lacroix

| Tex. | Jul 1, 1876

Roberts, Chief Justice.

The exceptions to the evidence offered by appellee, because it contradicted that offered by appellant on the subject of waiver, was not well taken. It was not an attempt to impeach the witness of appellant, by showing, for that purpose, that he had made different statements at another time than those contained in his testimony in the case.

The real question in the case relates to the provision in the policy of insurance, which reads as follows, to wit: “ All claims under this policy are barred, unless prosecuted within one year from date of loss. No claim for loss to hear interest before judicial demand.”

The loss is alleged to. have occurred on the 11th day of August, 1867, and the suit was brought on the 30th day of November, 1868, being more than twelve months. This fact being set up in bar of the action, it was sought to be avoided by setting up a waiver of this provision.

Such a provision has repeatedly been held to be legal and valid, as part of the contract of insurance. (Peoria M. & F., Insurance Co. v. Whitehall, 25 Ill., 473-4; Amesbury et al. v. Bowditch M. F. Insurance Co., 6 Gray, 606; Ripley v. AEtna Insurance Co., 30 New York R., 163,164.) The judge, in delivering the opinion in the last-cited case, says: “ It seems to me that a waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on a performance of the contract or forfeiture of the condition.” (Ib., 164.)

This is believed to be a clear statement of the rule of law upon the subject.

The appellee, in his last amended petition, which was in the nature of a replication to appellants’ plea in bar, stated in substance “that at various times within the twelve months next succeeding the said loss by tire, and frequently after the expiration of that period, defendant, through its president and secretary, and other duly authorized officers and agents, assured plaintiff, and also his attorneys, G. H. Sherwood, and M. C. McLemore, that his said loss would be paid so soon as the facts respecting said fire could be investigated and the amount of said loss inquired into, in pursuance to the usage and practice of defendant; and that no objection would be interposed to the payment of said loss unless it was shown by said investigation that the amount thereof was fraudulently overestimated, or that plaintiff had had a criminal agency in causing said fire; and plaintiff and his attorneys were frequently dissuaded by defendant from bringing said suit, and advised that it was useless and unnecessary so to do, until said inquiries should be perfected.” * * * “ That defendant never at any time refused to pay said loss, until more than the expiration of twelve months next succeeding the accrual of plaintiff’s right to sue under the terms of said policy, but repeatedly declared its intention to pay it, in case its investigation of the circumstances of the said fire should fail to involve plaintiff in misconduct or fraud. That said investigation did not involve plaintiff in any wrongdoing; and when it was concluded, demand was again made on defendant for payment, and for . the first time refused. 'Whereupon plaintiff' filed tiffs suit.”

This was in effect the allegation of an agreement on the part of defendant not to take advantage of the delay in suing on the claim for the loss, until the defendant had completed the investigation of the circumstances of the fire. The advantage in the delay of the time given to investigate before the suit should be brought against defendant, was the consideration for the agreement not take advantage of the delay in bringing it until the investigation could be completed. That would have been a valuable consideration for an agreement entered into at any time before the expiration of twelve months from the loss by fire, but it is not perceived how it could be so afterwards; that is, for an agreement made after the end of the said twelve months. Or, if these allegations may be regarded in the light of an estoppel, they are in effect, that defendant, through its authorized officers and agents, gave assurances, or made representations of a fact that they were investigating the circumstances of the fire, and desired and requested that no suit should be brought until they could complete the investigation, upon which plaintiff relied and acted, until after the expiration of twelve months from the time of the loss.

The company filed special exceptions to the amended petition, “because all-said allegations of waiver are insufficient in law, uncertain as to facts, mere legal conclusions, and without time, place, person, or facts to give the defendant any sufficient cognizance thereof.”

It will hardly be contended that the plaintiff, under these allegations, would be required to prove that the agreement was made with, or representations were made by, all of the officers designated as' the president, secretary, and duly-authorized officers and agents. It would be sufficient to have proved it to have been made with or by any one of them. The literal import of the allegation might be construed to refer to the president and. secretary, when the agreement was made, if it were made with either of them. It might be asked, which president or which secretary, if there were more than one, during the said year after the fire, and who besides them, during that time, were the officers and agents of the company authorized to make such an agreement or such representations, and how were they authorized, if merely agents, and what office did they hold in the company that conferred such authority upon them, and what time, place, transaction, or circumstance was connected with the malting of such agreement or representations? Thus, by this question, it is shown, the allegations are just tantamount to a declaration, that the company, by some person duly authorized, made such representations or agreement, with either the plaintiff or some one of his attorneys, (naming them,) at some time and at some place during some time of the year after the fire occurred, which would hardly be held sufficient upon ■special exceptions. There was an uncertainty also as to the matter to be investigated: whether it was by a criminal prosecution, or by searching for evidence to prove the claim of loss to be excessive or fraudulent, civilly or by both, and in what way and when did the investigation end, which, under the alleged agreement or representations, was to terminate the delay sought for by defendant.

To authorize a written agreement to be set aside and superseded upon the ground that an additional agreement has been made verbally in reference to the same matter, the allegations setting up such agreement should with reasonable certainty set out the terms of and parties to the contract. And the same rule would apply with equal force to the -acts or representations of a party that have been relied and acted on by the other party, so as to amount to an estoppel. The amended petition excepted to, consists of a string of allegations, which may he collated and construed into two imperfectly stated grounds of waiver — one by agreement and one by estoppel. It was intended, doubtless, to adapt the pleading to the evidence expected to be offered in support of it. It will be found, however, under our system as well as under any other, to be much better and safer pleading, to present distinctively each defense or cause of action, by connected averments of the necessary facts in reference to the requisites of the law relating to such defense or cause of action, and let the evidence, however general or circumstantial, be applied, as well as it may be, to sustain such specific defense or cause of action that has been definitely stated.

Whether the allegations of the amended petition be regarded as setting up an agreement or an estoppel, they are too indefinite and uncertain to be sustained, when specially excepted to, as was done in this case; and therefore we are of opinion that the court below erred in not sustaining the special exceptions to the amended petition.

Eeversed and Eemandbd.