Silverberg v. Phenix Insurance Co.

Ross, J. It is unnecessary to decide many of the questions argued by counsel, for we are of opinion that the forfeitures relied on by appellant were waived. The policy in question was issued to insure the quartz mill and machinery of the Pinal Mill and Mining Company, situated in the territory of Arizona, and the loss was made payable to one Loomis. The fire occurred on the 2d of April, 1879. Soon afterwards the defendant was notified of the fact. On the 17th of the same month Loomis gave an order on defendant to pay the loss to the plaintiff, which order was duly presented, and subsequently assigned the claim to plaintiff. Defendant directed the proofs to be made out, which was done, and subsequently required the plaintiff to present witnesses and vouchers. The witnesses, including the president and secretary of the company, were examined- at length by defendant, as well as the vouchers, which consisted of the c.riginal receipted bills for materials, machinery, and labor in the construction of the mill. After all this the defendant said the proofs were satisfactory, instructed the plaintiff to make out formal proofs of loss, and said that the money would be paid at the expiration of the sixty days allowed by the policy for the payment of the loss. Nothing more was said by defendant until the expiration of that period, when in response to a demand by the plaintiff for the money defendant said the policy had been [39]avoided by breach of its conditions and refused to pay. The verdict includes a finding that defendant had full knowledge of all the facts when, after the examination of the witnesses and vouchers, it expressed its satisfaction with the proofs and promised to pay the money. The facts of the present case with respect to the question of waiver are much stronger against the insurance company than were the facts in the case of the Penn. Ins. Co. v. Kittle, 39 Mich. 54, where the court, through Cooley, J., said: “The question of waiver was submitted to the jury as one of fact, and they appear to have found that there was a waiver. The facts submitted were that, after the loss, the adjusting agent of the defendant called upon the plaintiff, and after investigation, made an offer to pay, by way of compromise, $375, at the same time objecting to the taking out of the second insurance ; that this offer was declined, and the agent went away, and soon after wrote the plaintiff that she might go on and make out her proofs, and the matter would then be taken into consideration; that subsequent correspondence took place between the agent and the plaintiff respecting the proofs, the former demanding more particularity in what was furnished, and it was not until six months after the offer for a settlement was made that the agent notified the plaintiff, who in the meantime had been endeavoring to make the proofs satisfactory, and to overcome the objections he was making thereto, that ‘in addition to the objections heretofore made/ the defendant would insist upon the forfeiture because of the second insurance. We think the jury were warranted in finding that the defendant, by calling upon the plaintiff to go on and make out her proofs, and by requiring her to be at the trouble and expense of correcting these to satisfy the criticism made by the agent, without giving her to understand that the company would rely upon the forfeiture, should be held to have waived it; and that, if it was the purpose all the while to insist upon it, the agent did not act towards her in good faith.” To the same effect many cases might be cited, but it is unnecessary to do so.