Wagner v. Dwelling-House Ins.

Opinion, Mr. Justice Sterrett: This action was grounded, not so much on defendant’s contract, as evidenced by its policy of insurance, as upon the agreement made after the fire, by which plaintiffs’ claim of $1,683.21 for loss, etc., was compromised and settled for $1,520.10 payable in a week or ten days thereafter. In plaintiffs’ declaration or statement of claim, the policy of insurance, loss by fire, proofs and amended proofs of loss, offer to furnish any other information that might be requested, etc., are fully set forth as inducement to the alleged compromise and promise to pay. After reciting all these, and averring that “ no other or further complaint was made, nor information asked by said defendant from said plaintiffs, in relation to the circumstances of the fire aforesaid, or the loss and damage thereby suffered,” the plaintiffs further aver that “ on or about the first day of February, 1889, the said defendant,"by its duly authorized agent, W. M. Melchert, came to and upon the premises .... where the fire occurred, and where the loss and damage to said plaintiffs was suffered, and then and there compromised, adjusted and settled with said plaintiffs their claim of $1,683.21 for the sum of $1,520.10, under an agreement with said plaintiffs that said sum should be paid them by defendant within a week or ten days thereafter, in full satisfaction of their claim for their loss and damage aforesaid.” In its affidavit of defence, the.. company alleges that in February, 1889, another or third, - “ proof of loss was asked for by it through its agent W. M. Melchert, and one was executed and given by said plaintiffs to said agent of said defendant, wherein the amount of said plaintiffs’ claim from said defendant as set forth was $1,520.10,” etc., but it denies that Melchert, either in behalf of the com [351] pany or of laimself, compromised, adjusted and settled with the plaintiffs as alleged in their statement. As a witness on behalf of the defendant, Melchert testified on the trial, that he was then and had been for over five years in the employ of the company as its special agent and adjuster; that as such he visited the premises of the plaintiffs in February, 1889, “ for the purpose of adjusting the loss and investigating the circumstances.” In answer to the question: “ State whether or not you adjusted the loss with them that day,” his reply was, “ I did.” He further testified, in substance, that after the loss had been adjusted, the plaintiffs in his presence executed a proof of loss which he forwarded to the company within twenty-four hours thereafter. The plaintiffs both testified on the trial fully and circumstantially to the facts connected with the compromise and settlement of their loss by Melchert as agent of the company, in February, 1889, substantially as averred in their statement of claim above quoted. They both denied that they then signed an additional proof of loss, but admitted signing a paper containing, as they were informed, the terms of settlement made with Melchert: The controlling issue was one of fact, viz., whether plaintiffs’ claim was compromised and payment thereof promised as averred in the statement. That question was fairly submitted to the jury and found in favor of the plaintiffs. That finding of fact was conclusive against the defendant, and virtually disposed of every ground of defence based on conditions contained in the policy. “ Where an insurance company, after a loss, has adjusted the claim therefor, and has agreed to pay a certain sum in liquidation of the claim, it cannot, in an action setting forth such facts, object that the action was not brought within the time limited in the policy. In such a case, the action is not upon the policy, but upon the agreement to pay. Neither, in such case, can it set up a breach of warranty or of any of the conditions of the policy in defence, for adjusting the loss and promising to pay it is a waiver of all breaches on the part of the assured, and of all defences which might have been made except for such waiver. A breach of warranty or of any condition in the policy must be insisted on when the claim is made, and before an agreement to pay the loss has been made: ” 2 Wood on Insurance, § 450. In other words, after an adjust [352] ment or compromise of the claim it is too late to impale the plaintiffs on any of the sharp conditions sometimes found in policies of insurance. For the purpose for which it was offered, there was no error in admitting the testimony referred to in the first and second specifications. Nor was there any error in those portions of the charge recited in the third, fourth and fifth specifications, nor in answering either of defendant’s four points. In view of the controlling facts found by the jury, and above referred to, the questions intended to be raised by those points became wholly immaterial. Judgment affirmed.