Peoria Marine & Fire Insurance v. Lewis

Scates, C. J. I will, for convenience, notice the assignments of error in the order in which they are made. The first error alleges the overruling the 5th, 6th and 11th pleas. I think there is no error in this. The 1st and 2d counts allege that the defendants gave in a particular account of the loss, verified, etc., and that plaintiffs waived imperfections and deficiencies, and consented to an amended statement, etc. * The 5th plea contains no traverse of these averments, but seeks to bar the action, notwithstanding their waiver of these very omissions, as they admit, virtually, by not traversing these averments. They may waive it. Martin v. Fishing Insurance Co., 20 Pick. R. 396 ; Ætna Fire Insurance Co. v. Tyler, 16 Wend. R. 402. They may not only waive the right to make objections to a want of proof, and to imperfect proof, but it is considered as waived, to everything not specifically pointed out. Angelí on Insurance, Secs. 230 to 248, and authorities there referred to. The plea should, therefore, have denied the allegation that plaintiffs had waived these grounds of objection, and consented to an amended statement, and denied also that such amended statement was made. The 6th plea shows no bar. The same reasons are applicable to this jilea, as to the 5th. Where notice is given, and an account and proofs are furnished of the loss-—mid the company make objections to making jiayment—all grounds of objections that might be taken, and are not, are considered as waived, and the company can afterward insist only upon the objections thus taken. The authorities are abundant and conclusive to this point. I refer again to those above cited and the following: 6 Gush. B. 342; 1 ibid. 258; 9 John. B. 192; 25 Wend. B. 375; 3 Sand. B. 27; 2 Hernán B. 97; 22 Ohio B. 476. PTcither of these pleas sets forth enough to bar the action, or avoid the jioliey under the 11th article of the annexed conditions. The 11th plea alleges, as a bar, that defendants executed an incumbrance upon the premises insured. The seventh article of the conditions has made no provision against incumbrances of this character. A change of title or . any undivided interest in it, by assignment of the whole or any interest in the policy, without the consent of the company, would avoid the policy. Admitting, that this would be an assignment within the meaning of this article of the conditions, yet the plea ought to aver that the company did not assent and agree to such transfer. For a sale and transfer by assignment of the policy w'ould be good with the consent of the company. This we may presume, or that the conditions were complied with, until the contrary is averred in the plea. See for assignments 16 Barb. (S. 0.) R. 511. The second error questions the admission of the testimony objected to, especially the preliminary proofs. There appears to have been some objection to the preliminary proofs, but what was its grounds or nature, does not appear. Such general objections are of too little weight to require attention. Further proofs were taken and furnished, and as we hear no further specific objection to them, except as to the time they were furnished, we may indulge the presumption that they were otherwise sufficient. I think the proofs were perfected within a reasonable time. The provision in the conditions that notice is “forthwith” to be given of the loss, means within a reasonable time, under the circumstances— the use of due diligence. 12 Wend. R. 452; 9 ibid. 163; 3 Gill (Md.) R. 177. The notice here given, two days after the loss, was forthwith, within the meaning of the condition, and the preliminary proofs furnished five days after loss, is fully in compliance with the condition requiring them “ as soon after (the loss) as possible.” The company expressly consent to allow the proofs to be completed, and cannot, therefore, object to the reasonable time.actually taken. But the-right to urge specifically any others, has been waived by the company having put their refusal to pay upon two specific grounds. By the sufficiency of these, therefore, they must abide, so far as their defense rests upon this class of objections. The company put their refusal upon the ground that the representation of an insurance of the same property in the “ Stephenson Comity Mutual Fire Insurance Company” was untrue—in this that the property was as “their starch manufactory”—which, it is contended, did not include the “fixtures and machinery.” And on the additional ground- that the application, which becomes a warranty, represented that there was a force pump in the building with Rock river to feed it, whereas there was no hose provided to be attached and used in extinguishing fires. The latter representation appears to have heen literally true. There was a force pump in the building, which drew its supplies from the river. This representation does not include a hose, by implication. A hose might be an exceedingly useful appendage in case of a fire. But buckets and other means could be used to extinguish a fire, where a supply is furnished within the building by a force pump. The plaintiffs have no right to add this to the representation, as part of it, and avoid the policy for want of it. The other objection we think equally untenable. The description is substantially correct, and more is not required. A starch manufactory substantially includes the fixtures, etc., necessary to the processes of such manufacture. The description was held sufficient in Post v. Hampshire Mutual Fire Insurance Co., 12 Metcalf R. 555, though more indefinite than this. The description is sustainable according to the following cases. 9 Metcalf B. 205; 10 Pick. B. 535; 2 Foster’s (1ST. H.) B. 15. In 20 Barb. (S. C.) B. 635, it was held that a “steam saw mill” covered not only the building itself, but all the machinery and fixtures therein. Quite as strong as this case. The third assignment of error questions the instructions. But I do not discover any legal objection. The first two, are general upon the facts. The third lays down the familiar and common principles governing agencies. The fifth is amply sustained, as law, by the authorities already referred to on that point. The eighth lays down a correct rule in relation to the recovery of damages, unless controled by express provisions of the policy. The company may be compelled to pay the whole loss, and will be entitled to sue and recover a proportionate amount of other companies. This is the general rule, and will be applied unless controlled by the policy, which may confine the recovery to a proportion of the loss only. The ninth instruction is fully warranted by the second section of the act regulating the recovery of interest. 1 Purple Stat. p. 633. By the very terms of the policy, the insured is required to furnish proofs of the amount of the loss. The assured must liquidate the amount of the loss, by his evidence, sixty days before it becomes due by the policy. But, by the contract, it does become due within sixty days after this proof is made. It is true, the amount may be controverted by proof, yet that will not change the principle, because the true amount may be variable. Whatever is due, becomes due aud payable within the time fixed, after the tender of proofs, and will bear interest from that date. The general errors I need not notice, as no grounds for a new trial are apparent. Judgment affirmed.