Rockford Insurance v. Travelstead

Phillips, J. This is an action of assumpsit brought by appellee against appellant, on a policy of insurance. It is insisted in defense that the assured in his application made, false representations as to the title to the land and amount of land in the farm on which the insured buildings stood, and falsely represented the amount of a mortgage on the premises. The plaintiff, in reply, while denying the false representations, claims that the defendant company, with full knowledge of all the facts, demanded proofs of loss, which were furnished, and through its adjuster, Dolan, adjusted the loss at §400, and Dolan afterward repudiated the adjustment; the plaintiff claims that with full knowledge of all the facts. The demand for the proofs of loss, which were furnished, estojis the company from setting up the false representations. The insurance company denies the right of Dolan to waive any of the conditions of the policy and denies that the evidence shows him to be an agent of the company. A trial was had before a jury and a verdict was entered for §465; there was a remittitur of §23.15; motion for a new trial was overruled, and judgment entered for §441.85. The insurance company brings the record to this court by appeal. The evidence shows that the appellee’s building and contents, the insured property, was destroyed by fire, and he at once gave notice to the company and was informed in reply that Mr. Dolan, an adjuster, would come and see about the matter. A short time thereafter appellee met Mr. Dolan and a meeting was appointed, to be held in Marion. Appellee came to Marion and met Mr. Dolan, and found he had full knowledge of appellee’s title to the lands, the number of acres, and the amount of the mortgage. With this knowledge Mr. Dolan asked for a statement of the property destroyed by fire in the building and a description of the building burned. The appellee then, with Mr. Dolan’s aid, made proof of loss. The same was sworn to by appellee before a justice of the peace and was delivered to and retained by the adjuster. Some propositions of a settlement of the loss were made and an agreement entered into by which the company was to pay $400. The adjuster then produced the premium note of appellee, and proposed to deduct that from the $100, to which appellee objected at the time, but subsequently consented, when Dolan then refused to pay anything. The evidence shows that when the company was notified of the destruction by fire of the insured property, the appellee was informed that an adjuster, Mr. Dolan, would call and investigate the matter. He subsequently did so and produced the premium note made to the company by the appellee. It was sufficiently shown that he was an agent of the company. Before the meeting at Marion he had called at appellee’s house, and in his absence, with the consent of a member of his family, had examined his papers and found he had title to forty acres of land, and a bond for a deed to thirty acres. He had also learned of the existence of an unrecorded mortgage and had called on the mortgagee and found the amount secured thereby. The appellant insists that the appellee in his application had made false representations as to the amount of the mortgage; the copy of the application indorsed on the policy was offered in evidence and contains, this question: “Is your property incumbered, if so, by what, in what amount, when due.” To which the answer is: “84 Mtge. on forty acres.” The mortgage on the forty acres of land is shown to have been made in 1886, and to secure a note for $148.03, due 18th of September, 1887, no part of which had been paid. We can not construe the answer to I the question above given as being an answer to more thai) that part of the question: “ Is your property incumbered ? If so, by what ? ” The answer, “ Mtge. on forty acres,” is in response to that question, and the “84” is meaningless, and must be rejected. The answer does not attempt to reply to that part of the question “ to what amount and when due.” It is insisted, however, in argument, that the original application contained the answer as follows: “$84 Mtge. on forty acres.” That original application was not in evidence and was not offered until after the argument of the case commenced, and when then offered, the court, on objection of appellee, refused to open the case and allow the same to go to the jury. It was not, therefore, in evidence, and can not be considered by us. From the evidence before the jury, we do not find the appellee made a false representation in response to that question. But if it is conceded that the answer of appellee was shown to be “ $84 Mtge. on forty acres,” and was . fraudulent, yet the evidence shows that with full knowledge of the facts, the agent of the company required of appellee full proof of loss, which was made. This must be held to estop appellant from setting up in defense such misrepresentation. German Fire Ins. Co. v. Grunert, 112 Ill. 68; Webster v. Phœnix Ins. Co., 36 Wis. 67; Gans v. St. Paul F. & M. Ins. Co., 43 Wis. 108. It is, however, urged hv appellant that the reason for an estoppel in such case is that the insured must he put to expense in making proof of loss. It is shown that appellee took time to give the facts, make proof of loss and go before a justice to make affidavit to the same. The principle of estoppel is not based on expense incurred alone. It is said by Bigelow in his work on Estoppel, page 578, “A party can not occupy inconsistent positions, and where one has an election between inconsistent courses of action he will be confined to that which he first adopts. Any decisive act of the party, done with knowledge of bis rights and of ' the facts, determines liis election, and works an estoppel.” The evidence shows that the appellee answered the question, “ How much land do you own on which the property to be insured is situated,” by saying “ eighty acres,” and it is urged that this answer was fraudulent, as he had- a deed to but forty acres, and a bond for a deed to thirty acres. But the evidence shows that the adjuster, Bolán, had full knowledge of these facts at the time he required proofs of loss, and the principle of estoppel already discussed applies with equal force to this representation. The policy sued on contains this provision: “ Ho agent or employe of this company, or any other person or persons except the secretary, in writing, shall have the power or authority to waive or alter any of the terms or conditions of this policy;” and it is urged by the company that, the policy containing this provision, the assured had notice that Dolan had no power to waive or alter the conditions of the policy. Ho provision of the policy is changed, nor is anything added to it. The company employs its own agents, and if an agent employed and instructed with the discharge of a duty by the company requires an act of the assured which is inconsistent with the defense set up to avoid the liability claimed to exist by virtue of the policy, by reason of which the defense thus sought to be made is absolutely inconsistent with the act they have required of the assured, they will not be permitted to' engraft an additional condition in the policy to the effect that the assured shall not have the benefit of an estoppel in pais to a right that exists by virtue of the act of the company through its agent, and not merely by the terms and conditions of the contract. The instructions to which objections are taken proceed on the theory of estoppel by reason of the company having knowledge of the facts, and thereafter demanding proofs of loss. It was not error to give them. The bill of exceptions in this case is incomplete in not furnishing copies of papers offered and referred to in evidence; nor does it appear by the certificate of the judge that it contains all the evidence. The assignment of errors is not attached to the record but made on a separate sheet of paper and placed in the record without being attached thereto. This is not in compliance with the rule, nor with the requirement of the law. Martin v. Russell, 3 Scam. 342; Gibbs v. Blackwell, 40 Ill. 51; Williston v. Fisher, 28 Ill. 43. Finding no error in the record of which appellant may complain the judgment is affirmed. Judgment affirmed.