Warner v. Peoria Marine & Fire Insurance

By the Court, Cole, J. It appears to us that the objections taken to the admission of the policy in evidence are entirely untenable. It was objected that the policy appeared on its face to have been altered in two particulars : 1st, by striking out the word “ Buffalo ” and inserting the word “ Chicago,” in describing the streets upon which the property was situated; and 2d, by the insertion of the clause in respect to any subsequent insurance. How the respondent testifies in substance that Ward, the acting agent of the company at Milwaukee, called upon him before the policy was issued, and saw and inspected the property, and made out the policy on his own responsibility; that when the policy was handed him, he observed that the description was wrong, and the next day took the policy to the agent, who corrected the mistake himself, by striking out the word “ Buffalo ” and inserting the word “ Chicago ;” and that at this time no premium had been paid. He likewise explains when and by whom the clause, “ other insurance permitted without notice [323] until required,-’ was inserted ip. the policy, and states that it was done in January, 1860, by Montgomery, when he ed his further insurance, Montgomery' being at the time the acting agent of the appellant, as well as the agent of the other companies. This testimony is fully corroborated by that of Montgomery, who swears to the handwriting of Ward, and that the interlineation of the word “ Chicago ” was in his hand writing, and further that he inserted the clause as to subsequent insurance. This evidence is wholly uncontradicted, and sufficiently explains the interlineation and erasure in the policy. But it is said that it did not appear that the agents of the appellant had authority to make the interlineations, or receive and waive notice of subsequent insurance. The company, however, held them out to the world as its agents, authorized to receive applications for insurance, to issue policies, receive premiums &c.; and it is little less than a downright fraud upon .the public, to claim that such agents could not make a policy accurate in the description of the property insured, or insert such a clause in respect to subsequent insurance as was inserted in this policy. If insurance companies can avoid their liabilities on such grounds as these, there would be no safety in dealing with them. The respondent, when he applied for additional insurance in the Groodhue, Humboldt and Niagara companies, presented Montgomery, the agent of the appellant, as well as agent of those other companies, his policy, and had therein inserted in writing in the body of the instrument the clause permitting further insurance; and we must hold that this was within the scope of the agent’s authority. It was further objected that the circuit court erred in permitting the respondent to give in evidence copies of proofs of fire and loss, instead of requiring him to produce the originals. On this point the witness Montgomery testified that he was acting as agent for the appellant at the time of the fire ; that he had notice of it, and himself made out the proofs of loss. This evidence was made without objection, which clearly proved, as a matter of. fact, that all the preliminary proofs of fire and loss were made out and received by the agents of the company. Besides the company at no [324] ^me P^ace<^ refusal to pay the loss on the ground that preliminary proofs had not been made, or were not suf-Rcient. If this was the reason for not paying the loss, the objection should have been made known in time, so that the defect might have been supplied. As the company has not made any objection of the kind, it must be held to have waived it, and lost the opportunity to insist upon it now. Indeed we suspect that the company never thought of resisting the claim upon the ground that all proper and necessary proofs were not made; for the general agent stated, when at Milwaukee, three or four months after the fire, that the company had had hard times, and talked of paying $900. Inability to pay was probably the real reason why the loss was not promptly met. However this may be, the company, by not placing its refusal to pay upon the ground that no sufficient proofs of fire and loss had been made, must now be deemed to have waived all objection upon that score. See McMasters vs. The Westchester Man. Ins. Co., 25 Wend., 379; Ætna Ins. Co. vs. Tyler, 16 id., 385; Badle et al. vs. The Chenango Co. Mutual Ins. Co., 2 Coms., 53 ; Bumstead vs. The Dividend Mutual Ins. Co., 2 Kern., 81; Martin vs. The Fishing Ins. Co., 20 Pick., 389; Clark vs. The New England Mutual Fire Ins. Co., 6 Cushing, 342; Underhill vs. Agawam Mutual Ins. Co., id., 440; The Troy Fire Ins. Co. vs. Carpenter, 4 Wis., 20. In this view, the production of the original proofs of the fire and loss became unnecessary, and the fact that the respondent attempted to prove by Montgomery that they were made, ought not to prejudice his case. Some other objections were taken to the admission of evidence; but we do not deem them very material or important. The judgment of the circuit court is affirmed.