204 F. 32 | 6th Cir. | 1913
Plaintiffs in error sued upon two policies of insurance issued by defendant in error, for the recovery of fire loss upon a stock of lumber and other property in plaintiffs’ mill-yard. Plaintiffs submitted to nonsuit as to one policy. As to the other, verdict was directed for defendant.
In the title to the bill of complaint the defendant was describe'd. as “an insurance corporation or association doing business in Tennessee.”
We think this conclusion sustained by the decision in Kinney v. Columbia Savings & Loan Ass’n, 191 U. S. 78, 24 Sup. Ct. 30, 48 L. Ed. 103, which materially relaxed the strictness formerly applied to the question of jurisdictional showing in removal proceedings. It is true that in the Kinney Case the application in the federal court, to amend the petition for removal, was made before any proceeding on the merits ; but we are unable to see that that feature is important where, as here, the record in the federal court, before any proceeding had therein on the merits, showed (as asserted) diversity of citizenship, and thus actual jurisdiction to remove. We think the case distinguishable from Thomas v. Board of Trustees, supra, and Fred Macey Co. v. Macey, supra, in that the court could see, as matter of law, from the face of the record, that the board of trustees (in the Thomas Case) and the partnership association (in the Macey Case) were not and could not be citizens within the meaning of the statutes relating to removal, while in this case defendant might be an “association,” and yet be a corporation. We see no merit in the suggestion that the individual meriibers of the defendant association have not asked removal. If the association could be sued as such, we think it could lawfully take the necessary steps in its defense, including removal.
We think the offer broad enough to embrace proof that the “home office” or the general managing officers of the company (as distinguished from a mere agent) actually received the inspector’s report. Plaintiffs offered to show “that the insurance association itself received the report of this inspector.” The policy contains the express provision that:
“No agent or other representative of the underwriters shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement endorsed hereon or attached hereto, and as to such provisions and conditions no agent, or representative, shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”
The alleged waiver is not written upon or attached to the policy, and defendant invokes the above provision as absolutely precluding the assertion of the alleged waiver. In Assurance Co. v. Building Ass’n, 183 U. S. 308, at page 361, 22 Sup. Ct. 133, at page 153 (46 L. Ed. 213), an exhaustive examination and discussion is had of the authorities relating to waiver of conditions in insurance policies, and to the prohibition against altering or contradicting, unambiguous written contracts by parol evidence. That case involved a provision as to waiver in the identical language found in the policy before us. Justice Shiras, in the enumeration of the principles sustained by the authorities, included the propositions:
“That insurance companies may waive forfeiture caused by nonobservan.ee of such conditions; that -where waiver is relied on, the plaintiff must show*38 that the company, with knowledge of the facts that occasioned the forfeiture, dispensed with the observance of the condition; that where the waiver relied, on is an act of an agent, it must be shown either that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the action of the agent.”
That the defendant here might effectually waive the “clear space” provision in question is established by Assurance Co. v. Building Association. The objection that the policy makes the waiver ineffective, unless written upon or attached to the policy, is disposed of by the decision of this court in Ætna Life Ins. Co. v. Frierson, 114 Fed. 56, 51 C. C. A. 424, where it was held in an opinion by Judge (now Mr. Justice) Lurton that such provision may be itself waived as well as any other, and that the question in every such case is whether the waiver has been made by the corporation or by one authorized to act for it in the matter. Forfeitures are not favored, and any course of action on. the part of an insurer which leads the insured necessarily to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon forfeiture, although it might be claimed under the express letter of the contract. This principle has been applied in the following cases, among others: Insurance Co. v. Wolff, 95 U. S. 326, 330, 24 L. Ed. 387; Insurance Co. v. Eggleston, 96 U. S. 572, 577, 24 L. Ed. 841; Queen Ins. Co. v. Union Bank & Trust Co. (C. C. A. 6th Cir.) 111 Fed. 697, 49 C. C. A. 555; Etna Life Ins. Co. v. Frierson, supra, 114 Fed. 63, 51 C. C. A. 424; Supreme Lodge v. Wellenvoss (C. C. A. 6th Cir.) 119 Fed. 671, 675, 56 C. C. A. 287.
We do not think that defendant’s knowledge, at the time the policy issued, that lumber was piled within 100 feet of the mill, would necessarily estop defendant from urging such breach of the “clear space” warranty as avoiding the policy. Shingle Co. v. Insurance Co., 91 Mich. 441, 51 N. W. 1111. The specific location of lumber piles is or may be more or less temporary in nature, and, as affecting such structures, a warranty might well be considered promissory in nature. On the other hand, the barn, the oilhouse and the lumber platform were more or less permanent in nature; and if defendant, with knowledge of their existence and with reason to believe that their continued existence in their then location with respect to the mill and lumber piles was contemplated, elected to receive the premium and issue the policy, it would, we think, be estopped from asserting the continued existence of those structures as a breach of the “clear spacé” warranty. Whether defendant had such knowledge and reasonable expectation would be a question of fact for the jury; and so of the question whether the knowledge of the location of the structures named, obtained by defendant during the existence of its predecessor policy, could reasonably be presumed to be, or should have been, present in its mind at the time the policy in suit was issued.
We pass by without decision the question whether the alleged waiver was asserted in the declaration, as well as the question whether such assertion was necessary; for we find nothing in the declaration in
“That every policy of insurance issued to and for the benefit of'any citizen or resident” of the state “shall be held as made in this state and construed solely according to the laws of this state.”
This statute undoubtedly has the effect of making the policy a Tennessee contract, and requiring its validity and interpretation to be determined by the law of that state. Russell v. Grigsby (C. C. A. 6th Cir.) 168 Fed. 577, 94 C. C. A. 61. No law of Tennessee requiring a construction of the waiver provision differently than we have construed it has been called to our attention. Such is not the effect of decisions that a policy provision that no agent has authority to waive any condition, and that no waiver could be recognized, unless in writing, may itself be waived.
For the error pointed out, the judgment of the Circuit Court is reversed and a new trial ordered. The defendant may apply to the District Court for an amendment of its removal proceedings to conform to the facts. Failing such prompt application, the case should be remanded to the state court.