Union Insurance v. Billman

HENRY, J. The relation of tbe parties bere is tbe reverse of tbeir relation below. Tbe defendant in error recovered a verdict and judgment on an insurance policy for a partial loss by fire. Her third amended petition, which embodied the policy, shows that after the fire she paid to the plaintiff in error’s agent an assessment which was then so long overdue that (as decided on a former review of this case) her insurance stood suspended. But the plaintiff alleges waiver. The agent remitted the money to his company, which, however, returned to him the portion covering the destroyed property, with instructions to return it to the insured. This he failed to do until six or eight months after [28] the fire, and long after suit brought, and then, upon tender, the insured refused to receive it. This delay was shown by the company’s own witness and stands undisputed; and the other facts above recited are conceded. There could be no issue as to the making of the assessment or the giving of notice, in view o£ the admissions in the third amended petition. The plaintiff’s ownership and the value of the property destroyed were disputed, but were found by the jury upon competent evidence and upon a charge which was as to these matters correct. The court’s charge as to waiver contained no error prejudicial to the company. Union Mutual Life Ins. Co. v. McMillen, 24 Ohio St. 67; Phoenix Ins. Co. v. Hoeffler, 1 Circ. Dec. 403, (2 R. 131) 2 Joyce Insurance, 1375, n. 217; Phoenix Ins. Co. v. Tomlinson, 125 Ind. 84 [25 N. E. 126; 9 L. R. A. 317; 21 Am. St. 203] ; Phoenix Ins. Co. v. Lansing, 15 Neb. 494 [20 N. W. 22]; Universal Fire Ins. Co. v. Block, 109 Pa. St., 535 [1 Atl. 523]; German Ins. Co. v. Shader, 68 Neb. 1 [93 N. W. 972; 60 L. R. A. 918]; Johnston v. Phelps County Farmers Mut. Ins. Co., 63 Neb. 21 [88 N. W. 142; 56 L. R. A. 127] ; Schoneman v. Western Horse & Cattle Ins. Co., 16 Neb. 404 [20 N. W. 284]; Western Horse & Cattle Ins. Co. v. Scheidle, 18 Neb. 495 [25 N. W. 620]; Phoenix Ins. Co. v. Dungan, 37 Neb. 468, 473 [55 N. W. 1069]. The corporation is bound by its agent’s negligence. Citizens Savings Bank Co. v. Blakesley, 42 Ohio St. 645. Though the burden of proving the alleged waiver was upon the plaintiff (Eureka Fire & Marine Ins. Co. et al v. Baldwin, 62 Ohio St. 368, 383 [57 N. E. 57]; Mehurin v. Stone, 37 Ohio St. 49, 50), and ordinarily in such case the court can not direct a verdict for the plaintiff, nor refuse a motion for a new trial after a verdict for plaintiff founded upon an erroneous charge, yet this being a case wherein the facts are conclusively determined in a manner not affected by material error, the application of the law to such facts could only result in the verdict which the jury in fact rendered Cincinnati Gas & Elec. Co. v. Archdeacon, 80 Ohio St. 27 [88 N. E. 125; 23 L. R. A. (N. S.) 910; 135 Am. St. 735] and the judgment is affirmed. Winch and Marvin, JJ., concur.