Rokes v. Amazon Insurance

Robinson, J., delivered the opinion of the Court. This is an action on a policy issued by the appellee, insuring the property of the appellant against loss by lire. The policy requires that proofs of loss shall be furnished in writing immediately after the fire. Immediately as here used means within a reasonable time; and what is a reasonable time must of course depend upon the facts and circumstances of each particular case.

Cashan vs. N. W. Nat. Ins. Co.. 5 Biss., 476 ; Edwards vs. Lycoming Co. Mut Ins. Co., 75 Penn., 318 .

Admitting, however, for the purposes of this case, that proofs of loss were not furnished within the time prescribed by the policy, the main question is, whether there is any evidence legally sufficient to show a waiver of this condition on the part of the appellee. ⁵²⁰ It is conceded that where proofs of loss are furnished in time, and such proofs are defective, if the insurer puts his refusal to pay on other and distinct grounds, he will be held to have waived all objections to such defects; and will not be permitted to rely upon them in a suit upon the policy. Fair dealing in such cases, requires that the insurer should make known his objections when the proofs are furnished, in order that the insured may correct the same within the time prescribed by the policy. But it is argued that the failure to furnish the proofs within time stands upon different grounds, because the insured having by his own default forfeited the right to recover on the policy, he is not in any manner injured or prejudiced by the subsequent acts and conduct of the insurer. And it is contended, therefore, that a new consideration or an express agreement on the part of the insurer, is necessary to renew or give vitality to the policy.

It was said by Earl, Commissioner, in Underwood vs, Farmers’ Joint Stock Ins. Co., 57 New York, 502, that the law of waiver was based upon the doctrine of estoppel, and “ that in the absence of some consideration for a waiver, or some valid modification of the agreement between the parties, there could be no such thing as waiver of a condition precedent, except there be in the case an element of estoppel;” in other words, unless the failure to furnish the proofs within the time prescribed by the policy, had been occasioned in some way, by the acts or’ conduct of the insurer. The other commissioners, however, did not concur with the learned Judge in his views upon the law of waiver, and the case was decided on other grounds. See also Beatty vs. Ins.

Co., 66 Penna., 9. We have carefully examined all the cases within our reach on this branch of the case, and are of opinion that the contention of the appellee is unsupported either by principle or by the weight of authority. Preliminary proofs are required for the benefit solely of the insurer, in order that he may ascertain the nature, ⁵²¹ extent and character of the loss ; and the condition in the policy in respect thereof, being inserted for his benefit, there is no reason why he may not waive or extend the time within which such proofs are to be furnished. Nor is it necessary to prove an express agreement to waive.

On the contrary, it may be inferred from the acts and conduct of the insurer inconsistent with an intention to insist upon the strict performance of the condition. Tayloe vs. Merchants’ Fire Ins. Co., 9 How., 390 ; Post and Dowding vs. Ætna Ins. Co., 43 Barb., 351 ; Phillips vs. Protection Ins.

Co., 14 Mo., 220 ; Owens vs. Farmers’ Joint Stock Co., 57 Barb., 518 ; Graves vs. Wash. Incor. Ins. Co., 12 Allen, 391 ; Dohn vs. Farmers’ Joint Stock Co., 5 Lansing, 275.

But conceding for the purposes of this case, that there must be an element of estoppel in order to constitute a waiver, there is evidence in this record legally sufficient in our opinion to submit to the jury to support a waiver given on that ground. Estoppel as used in this connection, we understand to mean where the insurer, knowing that the proofs have not been furnished within time, so bears himself thereafter in relation to the contract, as fairly to lead the assured to believe that he still recognizes the policy to be in force and binding upon him. Now in this case, the property was destroyed by fire on the 8th of July, 1876, and on the next day, Mr. Montague, the general agent of the appellee, visited the scene, and personally inspected the loss and damage to the property. On the second day after the fire, the appellant in company with Mr. Forrest, his broker, called on Mr. Montague the agent, for information in regard to the nature and character of the proof required, and for blanks upon which to furnish the same; they were referred by him to Mr. Fickey, as the person specially appointed by the company to adjust and settle the loss.

Accordingly they called on Fickey, and not having any blanks of the company, he furnished them with other blanks for the purpose. ⁵²² The proofs were prepared by Forrest, the broker, and on the 28th of July, within a fraction less than three weeks after the fire, they were served on Fickey. By letter of August 8th, Fickey notifies the appellant, and Forrest his broker, that the proofs are defective; and concluded by saying the company “preferred to have the proofs furnished upon its own blanks, which he was now ready to furnish.” The