31 Wis. 160 | Wis. | 1872
It is objected that tbe proofs of loss furnished to .the company were not made within proper time. Tbe fire occurred April 8th, and the proofs of loss were made (sworn to) the 13th of August after. The requirement of the policy is, that “ in case of loss, the insured shall give immediate notice thereof,” and then immediately follow the words, “and shall render to the company a particular account of said loss; under oath, stating the time, origin and circumstances of the fire,” etc. It may be considered, perhaps, questionable whether this word “immediate” applies to or qualifies anything but the notice, or extends to any of the subsequent conditions or acts which the assured is required to perform. We are inclined to think it does not so extend, but is limited in its application to the notice; and this not being required to be in writing, immediate verbal notice satisfies the condition. In the present case it appears that immediate verbal notice of tbe loss was given to the local agent of the company.
But, if we are wrong in the above conclusion, there are other facts disclosed which, in our judgment, show a waiver of the objection on the part of the company. This court is prepared to affirm, as a general principle applicable to all cases of this nature, that, where the company declines to receive the proofs of loss and to pay it, upon the ground of any insufficiency or informality in such proofs, or because made out of time, as was done in this instance, it shall, in its communication to the assured, state the grounds of such refusal on its part, as the same are then known or are believed to exist by the officers or agents having charge of the business. This conclusion as to the legal duty under such circumstances of tbe officers and agents of such companies, was strongly intimated in the case of Killips v. Putnam Fire Ins. Co., 28 Wis., 472; S. C., 1 Ins. Law Journal, 169. The remark was called out there by what was considered the unfair and disingenuous conduct of an agent of the company. Nothing of the kind can be attributed to any agent here; but, as the relation between assured and
It is objected that it was incompetent for the wife of the plaintiff to testify to the facts showing her agency for her husband, in the transactions connected with the insurance or the proof of the loss. It is well settled in this state, that the wife, having acted as agent of her husband, is a competent witness for him, to prove any act done by her or fact transpiring within the scope of such agency. It is a well settled principle generally, as appears from the citations by counsel for the plaintiff, that the authority of an agent, when not in writing or required to be, may be proved by the agent himself. This principle, which governs in the proof of all other agencies, cannot be denied operation in the single case where the wife acts as the agent of the husband, or the husband as the agent of the wife. No reason is assigned for the discrimination, and it is believed none in fact exists.
In the present case, the plaintiff and husband was absent from home at the time the house took fire, and, with its contents, was consumed. He was not absent temporarily, but had been gone over fourteen months when the burning took place, and was still absent when the cause was tried in the court be
The objection, based on a strict and literal construction o; the language of the policy, that no one but “the assured” can give the notice, and that the proofs must be verified by his oat.r, and cannot, under any circumstances; be verified by the oath of another, is too refined and unreasonable to merit serious consideration. It is proper, however, to observe that counsel do not urge it, though it seems to have been looked upon as important by some of the agents of the company.
The exception to the ruling of the court excluding the evi
It appears from the whole record, therefore, that there was
By the Court.- — It is so ordered.