64 Ark. 590 | Ark. | 1898
(after stating the facts.) As this cause must be remanded on account of error in modifying the second instruction asked by the defendant, we will say nothing about the evidence, save what in our judgment is necessary to a proper understanding of the opinion of the court.
One of the conditions precedent to the right of recovery by loss by fire, according to provisions in the policy, is as follows: “In case of loss the assured shall give this company immediate notice thereof at its branch office in Cincinnati, Ohio, and within sixty days thereof render under oath to its office aforesaid a particular account of said loss, setting forth the date and circumstances of the same, the title and occupation of the property, and shall furnish an itemized statement of the building or buildings by some reliable builder, and, if required, said proofs shall be signed by two disinterested neighbors, and by tbe nearest magistrate, certifying their belief that the statements are true, and that assured has, without fraud, sustained the loss as set forth in said proofs; and until the proofs required herein are made, the loss shall not be payable.”
This requirement is imperative, and must be complied with, unless it is waived by the insurance company. Was there a waiver of proofs of loss? In Beatty v. Lycoming Insurance Company, 66 Pa. St. 17, Judge Sharswood said: “Now, to constitute a waiver there should be shown some official act or declaration by the company during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters did not mean to insist upon it. As is remarked by the present Chief Justice, * * * ‘this never occurs unless intended, or when the act relied on ought in equity to estop the party from denying it.’ ” This is a correct statement of what is required to constitute a waiver. Let us apply it to the evidence in this case, in reference to a waiver, and the instruction of the court adverted to. It is well to remark here that the denial of all liability by an insurance company is waiver of proof of loss; for the law does not require a vain thing, and if the company does not intend to pay in any event, and denies all liability, proof' of loss could avail nothing. German Insurance Co. v. Gibson, 53 Ark. 494.
The evidence in regard to waiver of proof of loss is as follows: Ira A. B. Minner, the insured, amongst other things, testified as follows: “I "went to Black Rock to see Mr. Irby, the company’s agent, and told him what was lost, and what was saved. Irby made out a statement, and sent it to the company. Cline, the adjuster for the company, came and examined where the building had stood, and told me he had figured the loss to be $750, and would pay me that sum on compromise. I told him I would not take that amount, as I lost more than the amount covered by the policy. He then said he would not pay the full amount. Afterwards my wife and I went to Pocahontas, and in the presence of Waddell had a talk with Cline. He again offered me $750, and said if I brought suit against them he' could defeat me, as I had misrepresented the value of the property in my application, and had guilty knowledge of the fire. He said I burned my house.” Defendant read in evidence deposition of Walter Cline in substance as follows: I am special agent and adjuster for Phoenix Insurance Company. I was authorized by the insurance company to adjust the loss of I. A. B. Minner. I instructed Minner to furnish the company proofs of loss, and establish his claim, if he had any, in accordance with the terms and conditions of his policy. Neither the company nor myself ever received from Minner proofs of loss or other papers pertaining to same. I never waived proof of loss, but to the contrary instructed Minner to furnish same.
Now, it seems to us that the court below, by the modification of the 2d instruction, failed to submit the question of waiver to the jury, but told the jury that if they found that the defendant company refused to pay the loss upon the ground that the'plaintiff made false or untrue representations in his application for the policy sued on, or was guilty of burning his house, they would be authorized to find that the defendant waived proofs of loss. This was error in this case, for there was evidence tending to show that, at the time, the appellee was told by the agent, Cline, that he had made false representations, and that he had burned his house; that he would not pay the full amount of the policy, and that he could defeat him in an action at law. Cline also told him he must furnish the company proofs of loss and establish his claim, if he had any, in accordance with the terms and conditions of his policy. “An unqualified refusal to pay, based upon facts within the company’s knowledge, and made under such circumstances as to justify the insured in believing that the rendition of proofs would be a vain act, and that they would not be examined, has, we believe, always been considered equivalent to an express agreement of waiver.” Boyd v. Cedar Rapids Ins. Co., 70 Iowa, 329.
In the case of Citizens Fire Insurance Company v. Doll, 35 Md. 101, the preliminary proof offered by appellee was clearly defective. Indeed, it was not contended that it was such, in all respects, as was required by the eighth condition of the policy. But it was insisted that all defects had been waived, and the following letter was relied on as having that effect, to-wit:
“ Baltimore, July 8, 1869.
“L. Z. Doll, Esq.:
“Dear Sir: The proofs of loss furnished by you to this company are wholly unsatisfactory, as to the amount of the claim, even if the company be responsible at all. The company, however, denies any responsibility by reason of material representations as to title and property being untrue, and for other reasons. With a reservation of all objections to your recovering in any form, and without waiving any of the rights of the company under the policy, we leave you to pursue such a course as you may deem expedient.
“ Respectfully,
“Wm. Shannon, Secretary.”
The court, in its opinion, said: “There is no doubt of the general proposition that if the refusal to pay the loss,, or to acknowledge liability, by the insurers, be placed on other and distinct grounds than the insufficient and defective proof furnished, a waiver of such proof will be implied. * * * But in this case we do not comprehend how such waiver can be implied from the letter of the secretary of the company, when it expressly informed the appellee that the proofs of loss furnished by him were wholly unsatisfactory, as to the amount of his claim, and while the company denied all responsibility, by reasons of misrepresentations as to title and property, it reserved all objections to appellee’s light to recover in any form; and, without waiving any rights under the policy, it left the appellee'to pursue such course as he should deem expedient. The terms of this letter seem to have been taken from that sent by the insurance company to the insured in the case of Edwards v. The Baltimore Fire Ins. Co., 3 Gill 176, in reference to which, as implying a waiver, the court of appeals said that it repelled every presumption of any waiver on the part of the company, and was an explicit warning and annunciation to the insured that they designed to waive nothing, and that, on the trial of any action which he might institute against them, must come prepared to prove everything which, according to the terms and conditions of the policy, it was • necessary to prove, to entitle him to recover. The same may be said of the letter in this case; and that all ground for implying waiver is expressly excluded by tbe guarded terms employed. The court was therefore in error in supposing that the letter of the 8th of July, 1869, effected a waiver of the prescribed preliminary proof of loss.” See, also, Davis v. Western Mass. Ins. Co., 8 R. I. 277.
For the error in modifying said second instruction, the judgment is reversed, and the cause is remanded for a new trial.