Citizens Insurance v. Stoddard

Mr. Justice Sears delivered the opinion of the court. ■ Two questions only, of controlling importance, are presented upon this appeal. The first is as to whether an insurance agent, clothed with the powers created by such a limited agency as that of Sisson6, can, by his agreement or conduct, effect a waiver of the provision of an insurance policy which requires the proof of loss to be made within a stated time. The second question is as to whether the conduct of Sisson, if his power be conceded, did amount to a waiver of the provision. We are of opinion that the first question is determined by the decisions of our Supreme Court. The Phenix Ins. Co. v. Hart, 149 Ill. 513; D. H. Ins. Co. v. Dowdall, 159 Ill. 179; F. F. Ins. Co. v. W. R. Co., 162 Ill. 322; Hancock L. Ins. Co. v. Schlink, 175 Ill. 284; M. & M. Ins. Co. v. Schallman, 188 Ill. 213. In F. F. Ins. Co. v. W. R. Co., supra, the insurance company defended upon the ground that a provision of the policy that suit must be brought within six months after the happening of the loss, had not been complied with, and that a failure to comply operated to bar the action. Beliance was placed upon a provision of the policy to the effect that only the manager of the company had authority to waive, modify or strike from the policy any of its printed conditions. The provision as to time of bringing suit was one of its printed condition^. It was not waived by the manager of the company, but the plaintiff in the suit upon the policy contended that it was waived by conduct of one Bliss, who was local agent. This contention was sustained by the Supreme Court. In deciding the case the court said: “ This contention is based upon the stipulation in the open policy to the effect that only the manager of the company at Chicago had authority to waive, modify or strike from the policy any of its printed conditions. That stipulation has been held to have reference only to the conditions entering into and forming the contract of insurance, and to have no reference to provisions as to what is to be done by the parties after a loss has been incurred. Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102; Rokes v. Amazon Ins. Co., 51 Id. 512; Blake v. Exchange Mut. Ins. Co., 12 Gray, 265; New Orleans Ins. Co. v. Matthews, 65 Miss. 301. * * * Bliss negotiated as agent of the company for settlement of the claim, and his relations/to the company and to the transaction were such that his representations by which the plaintiff was deterred from bringing suit within the limit must be regarded as binding upon 'the company, and not affected by the limitation of power to waive, modify or strike from the policy any of its conditions.” In D. H. Ins. Co. v. Dowdall, supra, a like question arose as to the power of a local agent to waive by his conduct the proofs of loss required by the terms of the policy. A similar provision of the policy declared that no officer, agent or other representative of the company could waive any of the conditions. The court held that the local agent might waive the proofs of loss required by the policy as a condition to any enforcement of its terms, and in so' holding said: “ The position of counsel that under the clause in the policy which says ‘ no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy,’ the company could not be held to have waived the required sworn statement of loss by any acts or declarations of its agent, Smith, is not maintainable. Such a statement was required for the sole benefit of the company, and it could certainly waive it or extend the time within which it should be furnished if it thought proper to do so, notwithstanding the statement in the policy that it would not. This is to say, even if the parties did agree by the policy that there should be no such waiver, they might subsequently change that agreement. Hor is it necessary in such case to prove an express agreement to waive, but 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. Eokes v. Amazon Ins. Co., 51 Md. 512, and authorities there cited. It was also held in that case that a clause in a policy providing that no waiver or modification of any of the terms or conditions of this policy shall be made in any event referred to those conditions and provisions which entered into and formed part of the contract of insurance and which were essential to make it a binding contract between the parties, properly designated conditions, but had no reference to those stipulations which are to be performed after a loss has accrued, such as giving notice and furnishing proofs of loss.’ Citing Blake v. Ex. Mut. Ins. Co., 12 Gray, 265; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102.” The latest decision by the Supreme Court upon this question in M. & M. Ins. Co. v. Schallman, 188 Ill. 213, is in re-affirmance of the doctrine of these earlier cases. In that case it was sought to avoid the policy by reason of a failure of the insured to comply with provisions as to an appraisal of the property destroyed. The plaintiff proved a notice in relation to the appraisal given to Fisher Brothers, who were, as the defendant claimed, merely local agents empowered only to solicit insurance and collect premiums. The court in disposing of the case said : “But e\Ten if Fisher Bros, were merely such agents as had authority to solicit insurance or issue policies and collect the premiums, it is nevertheless true, under the decisions made by this court, that notice was properly served upon them. Eotice of demand for appraisal or arbitration will be sufficient when served upon the agent of the insurer, who is empowered to solicit insurance, issue policies and collect insurance premiums. Under the facts in this case, the appellee was warranted in treating Fisher Bros, as the general agents of the company. ‘ It has been repeatedly held by this court that an agent, although local in respect of the territory in which he operates, who is clothed with general power to solicit and make contracts of insurance for the company, is so far a general agent that notice to him of facts affecting the contract is notice to the company. * * * Whether this agent was apparently clothed with authority to represent the company in the adjustment of this loss or to accept service of demand and notice for arbitration under the conditions of the policy, was a question of fact to be determined by the jury upon consideration of all the facts and circumstances proved.’ Phenix Ins. Co. v. Stocks, 149 Ill. 319; Hancock Life Ins. Co. v. Schlink, 175 Ill. 284; Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179. These authorities hold that a general agent, clothed with power to solicit insurance, receive the application and forward it to the company, receive and deliver the policy and collect the premium, has power to waive a condition of a policy, notwithstanding that power is negatived by provisions in the policy and his contract of employment.” We think it must be regarded as the settled rule in this State that such conditions as the one here in question contained in a policy of insurance and providing for steps to be taken after a loss, such as proof of loss, are not within the limitation of another provision of the policy to the effect that no officer, agent or other representative of the company shall have power to waive any provision of the police except by writing upon, or attached to, the policy. And that an agent, although local in respect to territory, who is empowered to solicit insurance and negotiate contracts therefor, is also so empowered as to be able to waive such a condition of the policy as the one providing for proofs of loss. And that such waiver may be effected by conduct of the agent inconsistent with an intention to enforce a strict compliance of the condition. In this case it appears that Sisson was so far an empowered agent of the appellant that he was authorized to represent it in the soliciting of the insurance in question. The contract of insurance was accomplished through him as representing the appellant. He was therefore empowered to waive the condition as to proofs of loss. The only remaining question is, did he waive it ? It is not necessary, in this behalf, that there should have been a waiver in express language. It is enough if the conduct of Sisson was such as would naturally and reasonably lead appellees to conclude that the proof need not be made within thirty days, as provided by the terms of the policy. Sisson said to one of appellees, “ Don’t be afraid, we have sixty days after the fire to file our proofs in.” Proofs of loss were made within the sixty days. We are of opinion that appellant can not now be allowed to interpose as a defense to this suit a delay on the part of appellees in proving loss, which delay was directly caused by the agent of appellant. It is contended by appellant that the trial court erred in giving certain instructions to the jury, in which it was assumed that Sisson ,was an agent of appellant. It is enough to say that the error, if there was any error in this behalf, was without prejudice. There was no conflict in the evidence as to the fact that Sisson acted as local agent of appellant in effecting the contract of insurance between appellant and appellees, and that he continued to be such agent at the time of the transactions in question. This is established by the correspondence between appellant and Sisson and by testimony of one of appellees. ' There is no prejudicial error in assuming in an instruction a fact as to which there is no controversy, but which is in effect admitted. The contention in the case was as to the scope of Sisson’s agency and his power under it. That contention we find is settled by the authorities and no harm could have resulted to appellant by reason of the assumption of the undisputed fact of an agency in the instruction. . It. is urged by the learned counsel for appellant that the court erred in admitting, over objection, the evidence as to the statement by Sisson to appellees, above set forth, as to the time within which proofs of loss might be made. From the foregoing consideration of the law, it is apparent that in this respect there was no error. JSTo other of the errors assigned are - considered in the briefs of appellant, and therefore they may be regarded as waived. The judgment is affirmed.