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CHAPTER XIII.

NOTICE AND PROOFS OF LOSS.

SEC. 411. Compliance with conditions of contract must be shown

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SEC. 414.

SEC. 415.

SEC. 416.

SEC. 417.

Notice of loss-To whom given-By whom-When in time-Waiver.
What should be stated in proofs of loss.

Magistrate's, minister's, builder's certificate, etc.

Defective proofs.

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SEC. 424.

Waiver of defenses-Right to recover back money paid in settlement of loss.

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SEC. 432. Does not operate as waiver of notice and proofs in all cases.
SEC. 433. When arbitrators exceed their jurisdiction.

Compliance with requirements of contract must be shown.

SEC. 411. When the policy requires that certain proofs shall be made and conditions complied with, to establish a legal claim upon the company for a loss, all the conditions must be substantially, if not strictly, complied with, or no recovery can be had,' and this extends to furnishing

'Where a statement of loss declares, in accordance with the provisions of the insurance policy, the manner in which the building insured was occupied at the time of the loss, and it appears from such statement that the occupation was illegal, and, therefore, by the terms of the policy void, no action can be maintained upon such policy. If the statement is made under a mistake of fact, it may, it seems, be amended, but the action cannot be maintained until the amendatory statement is made. Campbell v. Charter Oak, etc., Ins. Co., 10 Allen (Mass.) 213. A policy of insurance against fire provided that in case of loss the assured should

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notice and proofs of loss in the manner, and specifically as provided. Thus, if the policy requires that proofs of loss shall be furnished, and that they shall contain certain specific information, as, a statement of the interest of the assured in the property;' the certificate of the nearest magistrate; of a builder as to the value of the building, at the time of loss, or as to the cost of reinstatement, or both, or any other specific information, it must be complied with fully, or, unless waived, no recovery can be had. In this connection it is proper to say that it is highly important that the provisions of a policy in this respect should be carefully examined, as, although it is much to be regretted, and probably does not materially aid insurance companies in securing strict justice at all times, yet they often insert useless and utterly impracticable conditions as to proofs of loss, and sometimes in such a manner and in such a place in the policy that the assured might think that certain of the conditions were not to be complied with, unless the company called for the information designated, wheu, in fact, the requirement is absolute, and a condition precedent to a recovery. This is quite often the case as to the clause requiring a builder's certificate. Generally, the insurer would not profit by such an omission

give immediate notice, and as soon as possible render, under oath, a particular account of such loss, “stating whether any and what other insurance has been made on the said property, giving copies of the written portions of all policies thereon." It was held that the furnishing of such copies was a condition precedent, without the performance of which (if not waived by the company) no recovery could be had on the policy. The affidavit of loss in this case showed that "there were three hundred dollars additional insurance made on the property: viz., a policy believed to be dated January 27, 1863, and numbered 6736, in the Mechanics' Mutual of Milwaukee, Wis., on the building;" and that the assured was unable to furnish a written copy thereof, becanse the policy had been mislaid, and the company had no record of the written part of it. Held, that this was not such a compliance with the condition precedent above stated, as to render the defendant liable. Blakeley v. Phenix Ins. Co., 20 Wis. 205.

1Shawmut Sugar, etc., Co. v. Peoples' Ins. Co., 12 Gray (Mass.) 535; 4 Ben. F. I. C. 357; Edgerley v. Farmers' Ins. Co., 43 Iowa, 587.

Phoenix Ins. Co. v. Taylor, 5 Minn. 492; Mann v. Western Ins. Co., 19 U. C. (Q. B.) 190; Germania F. Ins. Co. v. Curran, 8 Kan. 9; McMasters v. Westchester Ins. Co., 25 Wend. (N. Y.) 379; Wright v. Hartford Ins. Co., 36 Wis. 522; Columbian Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507; Billbrough v. Metropolis Ins. Co., 5 Duer. (N. Y.) 587; Bryne v. Rising Sun Ins. Co., 20 Ind. 103; Basch v. Humboldt, etc., Ins. Co., 35 N. Y. 429; Johnson v. Phanix Ins. Co., 112 Mass. 47; Moody v. Etna Ins. Co., 2 Thomp. (N. S.) 173; Langel v. Mut. Ins. Co., 17 U. C. (Q. B.) 524; Oldman v. Berwicke, 2 H. Bl. 577 n; Protection Ins. Co. v. McPherson, 5 Ind. 417; Worsley v. Wood, 6 T. R. 710; Etna Ins. Co. v. Tyler, 16 Wend. (N. Y.) 385; Cornell v. Hope Ins. Co., 15 Martin (La.) 223; Mason v. Harvey, 8 Excheq. 819; Routledge v. Burrell, 1 H. Bl. 254; Roumage v. Mechanics' Ins. Co., 13 N. J. 110; Noonan v. Hartford Ins. Co., 21 Mo. 81; Fireman's Ins. Co. v. Crandall, 33 Ala. 9; Turly v. N. A. Ins. Co., 25 Wend. (N. Y.) 374; Killips v. Putnam F. Ins. Co., 28 Wis. 472; Van Deusen v. Charter Oak Ins. Co., 1 Rob. (N. Y.) 55; Bailey v. Hope Ins. Co., 56 Me. 474; O'Neil v. Buffalo F. Ins. Co., 3 N. Y. 122.

• Fawcett v. Liverpool, etc., Ins. Co., 27 U. C. (Q. B.) 225.

on the part of the assured, as, unless the proofs were objected to upon that ground, the defect would be treated as waived, but instances might arise where the defect would be fatal, and great care should be used to comply substantially with the requirements of the policy in this respect, in the first instance.

As to time.

SEC. 412. When the policy requires that the proofs shall be made out and forwarded to the company within a certain specified time, as ten days,' thirty days,' sixty days,' three months, or any other specified time, unless such proof is made within that time, or facts shown that establish a waiver of strict compliance, no recovery can be had. As to whether the requirements of the policy as to time, have been complied with, is, in cases where there is no dispute as to the fact, a question of law for the court, but in cases where the fact is in dispute, it is a question for the jury; and in all cases, as to whether or not the company has waived strict compliance with the conditions as to the time within which proof is to be made, is a mixed question of law and fact, of law, as to what amounts to a waiver, and of fact, as to whether the facts shown bring the plaintiff within its beneficial operation. When the policy requires that notice of loss shall be given within a reasonable time, the question as to what is a reasonable time, and as to whether the insured has complied with the provision of the policy, is a question for the jury in view of all the circumstances attending the loss, the facilities for communication, and all facts that tend to excuse delay or to fix laches in this respect upon the insured. But when notice of loss is required to be given forthwith or at once, these terms are not to be construed with absolute strictness, so as to require a literal compliance, but, reasonably, in view of the loss and the circumstances surrounding it."

Who may make.

SEC. 413. Proofs of loss should be made as required by the policy, both as to substance and time, or a legal excuse shown therefor." They

'Dohn v. Farmers' Joint Stock Ins. Co., 5 Lans. (N. Y.) 275.

Planters' Mut. Ins. Co. v. Deford, 38 Md. 382; Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20.

'Eastern R. R. Co. v. Relief Fire Ins. Co., 105 Mass. 170.

'Cumberland Valley Mut. Protection Co. v. Schell, 29 Penn. St. 31.

Edwards v. Baltimore Ins. Co., 3 Gill. (Md.) 176; 2 Ben. F. I. C. 405; Wightman v. Western, etc., Ins. Co., 8 Rob. (La.) 432; 2 Ben. F. I. C. 330; St. Louis Ins. Co. v. Kyle. 11 Mo. 278; 2 Ben. F. I. C. 641.

6 Smith v. Haverhill, etc., Ins. Co.. 1 Allen (Mass.) 297. In an action upon a policy the declaration or complaint must allege that all conditions precedent to

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should be made either by the assured himself, his agent, or the party in interest. If the assured himself does not make the proofs, a valid reason therefor should be shown; and it is sufficient to show that he is a non-resident,' dead,' or was absent or insane at the time when the loss occurred, and did not return in season to make the proofs; or that he did not possess the necessary information in reference to the matters required to be stated to make the proofs; or that the

a right of recovery have been complied with, on an excuse therefor; and where a policy requires that proofs of loss must be made in thirty days after the loss, unless the declaration or complaint alleges a performance of such condition, or a waiver thereof, it is bad, on demurrer. Home Ins. Co. v. Lindsey, 26 Ohio St. 74. 1Kernochan v. New York Bowery Ins. Co., 17 N. Y. 428; Barnes v. Union, etc., Ins. Co., 45 N. H. 21.

'Ayres v. Hartford Ins. Co., 17 Iowa, 176.

'Farmers' Mut. Ins. Co. v. Grayhill, 74 Penn. St. 17.

O'Connor v. Hartford F. Ins. Co., 31 Wis. 160; N. W. Ins. Co. v. Atkins, 3 Bush. (Ky.) 328; Sims v. State Ins. Co., 47 Mo. 54.

In Sims v. State Ins. Co., 47 Mo. 54; 4 Am. Rep. 312, BLISS, J., in commenting upon this matter, said: "The assured was required by the policy to give notice forthwith, and within three days to send to the office of the company a particular account of the loss, signed and sworn to by the assured. Notice was at once given, and an agent of the company appeared upon the ground, produced the usual blank for making the proofs, and giving the "particular account” of the loss, which was filled up under his directions, and sworn to by E. W. Sims, as agent for the insured. This, it was claimed, was not a compliance with this requirement of the policy, but the court held otherwise. There is no doubt that, under policies with such a requirement, it is the duty of the assured to furnish a sworn certificate of loss; and the performance of such a duty is a condition precedent to a recovery. Col. Ins. Co. v. Lawrence, 10 Pet. 507; Noonan v. Hartford Ins. Co., 21 Mo. 81. The special objection to the certificate, as furnished, arises from the fact that it was sworn to by his agent, and not by the assured himself. Under ordinary circumstances, I should deem this a fatal objection, for it may with propriety be said that the owner is supposed to know not only his own loss, but also any secret reason why he should not be paid. The company contracted that he should take the responsibility of the oath, and if he was the one with whom they had personally dealt, who had knowledge of the matter, he would be bound to assume such responsibility. But to insist on it in this case, would involve a defeat of the policy altogether. The insured was a resident of St. Louis, and the property was in Carroll county, under the exclusive management and control of the agent. The policy was obtained by the agent, the application was made and signed by him, the premium note was executed by him; he had other policies in the same company, obtained also as agent; in his whole correspondence with the company at their home offiee, and in his interviews with their agents, he acted as agent for the insured, and it does not appear that the latter was known to the officers of the company, or knew anything about the policies, or whether he had any. Under these circumstances, if the proof is not to be made by this agent it cannot be made at all; and the position assumed by counsel places the officers of the company in the attitude of issuing policies and receiving premiums, knowing, from the nature of the case, that no legal proof could be made of the losses if they should occur. We will not place them in that position, but, on the other hand, hold that proof and certificate made by the man with whom they had all their dealings, who was in sole possession of the prop-. erty insured, and who alone knew the facts necessary to be embodied in the paper-who, in fact, was, as it were, insured as agent, is a compliance with this requirement of the policy Ayres v. Hartford Ins. Co., 17 Iowa, 176. If we thought otherwise, we could not hold the policy forfeited for that defect. for the reason that the company received the certificate, made no objection to it upon

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person making the proofs is the party in interest, to whom the loss, with the assent of the insurers, is made payable;' or is the real party is interest, and that the assured refused to execute them; or that they were made as directed by the insurers' agent; or that the objection as to their being made by the wrong person, has been waived. Thus, it will be seen that even when the policy requires that "all persons sustaining loss by fire are forthwith to give notice thereof to the company, and as soon after as possible to give a particular account of it, signed and verified by insured," the proofs may be made by an agent," by an executor," by the real party in interest,' or even by a creditor of the assured, under certain circumstances; but proofs signed by a person who has no authority from the assured, express or implied. are not sufficient, unless adopted by him; but a person who has the custody of the property and the entire management, is a proper person, in the absence of the assured, to make such proofs," as the wife, when the husband is absent, when she has been left in charge of the same; but where the assured himself can make the necessary proofs he should do so, or a sufficient excuse for the failure must be given.

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Notice of loss to whom may be given-by whom-when in time-waiver of.

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SEC. 414. Notice of loss, when required to be given "forthwith," "immediately," etc., is in time, if given with due diligence in view of all the circumstances.12

that account until the case came on to trial, long after the thirty days had expired; and, when payment was refused, placed the refusal upon other grounds. St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Phillips v. Protective Ins. Co., 14 id. 220; Ayres v. Hartford Ins. Co., supra; Taylor v. Merchants' F. Ins. Co., 9 How. (U. S.) 300."

Keeler v. Niagara F. Ins. Co., 16 Wis. 532; Barnes v. Union Ins. Co., 45 N. H. 21.

2 Pratt v. N. Y. Cent. Ins. Co.. 55 N. Y. 505.

Pratt v. N. Y. Cent. Ins. Co., ante; Frost v. Saratoga, etc., Ins. Co., 5 Den. (N. Y.) 54; Sims v. State Ins. Co., 47 Mo. 54.

'Kernochan v. N. Y. Bowery Ins. Co., ante; Walker v. Met. Ins. Co., 57 Me. 281; Bailey v. Hope Ins. Co., 56 id. 474.

Sims v. State Ins. Co., ante; O'Connor v. Hartford Ins. Co., ante; Ayres v. Hartford Ins. Co., ante.

Farmers' Ins. Co. v. Graybill, ante.

'Keeler v. Niagara F. Ins. Co., ante; Pratt v. N. Y. Cent. Ins. Co.

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"Edwards v. Lycoming Ins. Co., 78 Penn. St. 378; Cashaw v. N. W. Ins. Co., 5 Biss. (U. S.) 476; St. Louis Ins. Co. v. Kyle, 11 Mo. 278; Beatty v. Lycoming Ins. Co., 66 Penn. St. 9; Peoria M. & F. Ins. Co. v. Lewis, 18 Ill. 553. In New

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