Hand v. National Live-Stock Ins.

The terms of the policy sued on were that defendant insured one Dewitt (loss payable to plaintiff as his mortgage interests might appear) against loss by death to the amount of $100, on the following live-stock, to wit: “Kind of stock, gelding; name, Jeff; color, sorrel; age, seven; sum insured, $100; valuation, $125.” The policy provided that the property was insured against loss by death “not exceeding in amount the sum insured, and to be paid ninety days after proofs of the same have been made by the insured and received by the company.”

It further provided that “no animal shall be insured for more than two-thirds its cash market value; and whenever, in case of loss, the insurance shall have been found greater, the company shall be liable for no more than this proportion.”

The policy also contained a stipulation that, if differences should arise between the parties “as to the amount of any loss,” the matter should, at the request of either party, be submitted to two appraisers, — one to be selected by each party.

1. The plaintiff in his complaint set out the policy, and alleged, generally, performance on his part of all its terms and conditions. On the trial he admitted that he had never furnished proofs of loss, but introduced evidence tending to prove that the defendant had waived them. The admission of this evidence is assigned as error, on the ground that no waiver was pleaded.

Many of the authorities in this country hold that in actions on insurance contracts, under an allegation of performance of a condition precedent, proof of a waiver is admissible. This is certainly not in accord with the spirit of the reformed system of pleading. The general rule, often applied by this court, is well settled that, under an allegation of performance of conditions precedent, evidence of waiver or excuse for nonperformance is not admissible. Hatch v. Coddington, 32 Minn. 92, (19 N. W. 393;) Trainor v. Worman, 34 Minn. 237, (25 N. W. 401;) Boon v. State Insurance Co., 37 Minn. 426, (34 N. W. 902;) Mosness v. German-American Ins. Co., 50 Minn. 341, (52 N. W. 932;) Voak v. National Investment Co., 51 Minn. 450, (53 N. W. 708); and it is quite difficult on principle to see why the rules of pleading in actions on insurance contracts should be different from those applied in actions on other contracts. If there be any reasons for a distinction, they must be founded on considerations of policy. *525But it is not necessary to decide the question in this case. Substantially all the evidence of waiver was admitted without objection. Only in the case of one witness was any objection interposed, and then only after practically all of his testimony that was material had been given. The evidence admitted without objection was such as to require a finding that there had been a waiver. It was not contradicted, and there was no suggestion that defendant was prejudiced by being taken by surprise.

2. It is not necessary to decide whether this was a valued or an open policy. It is evident from the pleadings, the proceedings on the trial, and the findings of the court that it was assumed throughout that the policy was a valued one, and that there was no issue as to the value of the subject of the insurance. This being the case, the defendant cannot now raise the point that there was no evidence of value.

3. This action was commenced within 90 days after the loss, and it is claimed that it was prematurely brought. Stipulations in policies of insurance that the loss is to be paid within a specified time after proofs of loss, are furnished are not, strictly speaking, intended to fix the “due day” of the contract, but are inserted to enable the insurer, before making payment, to inquire and investigate with a view to determine whether he will pay. Hence it is well settled that a denial of all liability on a policy, and a peremptory refusal to pay under any circumstances, is a waiver of the right of the company to have the stipulated time before any suit is commenced. Upon such denial of liability and refusal to pay, an action may be commenced at once. The answer in this case admits that, before the commencement of this action, the plaintiff demanded from defendant payment of the loss, and that the defendant “denied any liability for said loss under said policy;” and, if necessary to resort to the evidence, it is sufficient to justify the finding to that effect. Order affirmed.

(Opinion published 59 N. W. 538.)