54 Vt. 351 | Vt. | 1882
The opinion of the court was delivered by
This is an action to recover for a loss by fire, under a policy of insurance issued by the defendant, dated the 13th of February, 1878. The property was destroyed by fire on the 28th day of April, 1879. Several objections are now urged by the defendant against a recovery.
I. That the proof of loss was not signed by the assured’s own hand, and verified by his oath. The proof of loss was furnished the company on the 17th day of May, 1879, signed and sworn to by the wife of the assured. It was the duty of the defendant if liable, to adjust the same within three months from that date. Within that time, on the 18th day of July, the plaintiff was notified, in effect, that the claim was not allowed, as the defendant did “ not find the title satisfactory,” and making no objection as to the defects in the proof of loss that are now complained of. We think that the reception of the proof of loss and placing their refusal to pay upon a specific, substantive ground, not connected with the proof of loss, and having before that accepted similar proofs from the plaintiff in a like case, was in fact a waiver of any defect in the preliminary proof. We think in this case, upon the facts reported, that it should be so held ; that as a matter of fact they did waive any defect in the statement. It is law in this State that a company has the right to reject a claim for a loss giving to the assured no reason therefor, and defend upon any and all grounds that would defeat a recovery; or, in other words, the rejection of a claim without assigning any reason, is not a waiver, as matter of law, of any of their rights. Spooner v. Ins. Co., 53 Vt. 156. The company has power to waive the production of the proofs ; and it is always a question of fact to be submitted to the triers whether it did do so. In the case cited to there was no evidence tending to show that the com
II. The referees find that the value of the property was not truly represented to the company ; that it was over-estimated, and in consequence thereof, over-insured. The assured agreed that the application was a true exposition of the value of the property ; and (it being a matter material to the risk) if it was misrepresented, the policy should be void. This is a matter of contract, made by the parties; and unless its effect is obviated by what subsequently took place, rendered the policy null. Boutelle v. Westchester Fire Ins. Co., 51 Vt. 4. The agent of the company knew these facts as to value, or ought to have known them; and so they are affected with like knowledge. The defence was matter of contract, not one by force of the charter ; and the company had power to waive it; and we think the defence must be as matter of fact held waived. They knowingly over-insured the property ; and not repudiating the contract because it was over-insured, placed their refusal to pay upon the distinct ground that the title was defective, and upon that ground alone. They leviéd assessments upon the policy both before and after the loss, and as there was no fraud on, the part of the plaintiff, he was misled by the defendant into the belief that his policy was valid. The assessments levied after the loss, were not made in ignorance, or through mistake of any fact, but inadvertently, and as it would seem from mere negligence. The facts reported amount to a waiver of this defence.
Judgment affirmed.
Redfield, J., being an officer of the company, did not sit.