Who May Make Proofs. by his creditor, and if assured fails to fur-state can only act through agents, and nish the preliminary evidence, the credi- the legislature having recognized the tor may do so by taking the testimony of board of trustees and placed them in assured and others; that, under the cir- charge of the asylum as such agents, the cumstances, the depositions of the assured authority of the vice-president could not and others may be taken as preliminary be disputed. People v. Liv., Lond. and proofs in this case, and the plaintiff's G. Ins. Co., 2 T. & C. 268 (N. Y.) rights are preserved. Northwestern Ins. Co. v. Atkins, 3 Bush, 328 (Ky.) 43.- Although it might be ordinarily a fatal objection that the proofs of loss are sworn to by an agent, and not by the assured, yet, where the company had dealt only with the agent, and he alone had the care of the property and knew the facts necessary for the proofs, so that if proofs are not to be made by him, they cannot be made at all, such agent's oath is a compliance with the requirement. The company having received such certificate without objecting until the day of trial, objecting to payment on other grounds, the alleged defect is waived. Sims v. State Ins. Co., 47 Mo. 54. 44. The wife of the assured, although authorized to make the necessary proofs of loss, cannot be examined as a witness in regard to the title of her husband and the assured. O'Connor v. Hartford Fire Ins. Co., 31 Wis. 150. 45. An objection based on a strict literal construction of the language of the policy, that no one but the assured can give notice, and that the proofs must be verified by his oath, and cannot under any circumstances be verified by the oath of another, is too refined and unreasonable to merit consideration. When the assured is permanently absent and totally ignorant of the loss or destruction of the property and value, the circumstances attending it, as also of the value and quantity of the property destroyed, his wife may execute and furnish the proofs and do other necessary acts required of the assured. Her authority may be established by her own testimony, to the effect that before her husband left he told her "to take care of the place and property until he returned; to take care of it the as himself until he returned." same Id. 47. When policy has been assigned in trust the assured must execute and furnish the proof. Whyte v. Western Ins. Co., 22 L. C. Jurist, 215 (Can.) 48.- When policy is made payable to a third party, proofs must be made by the assured. Condition requiring proof to be furnished as soon as possible, means within a reasonable time. When furnished four months after the fire the lapse of such time cannot be deemed reasonable. State Ins. Co. v. Maackens, 9 Vroom, 564 (N. J.) 49.- Policy was in the joint names of two parties who were partners in business. After the fire and two months after the making and delivery of the statement of loss one of the partners assigned all his interest, etc., in the policy to the plaintiff. Held, that the action was properly brought in the name of the plaintiff alone, and there was no objection in the fact that the proofs were sworn to by one partner (the plaintiff), being otherwise sufficient. Hutchinson V. Niagara District Ins. Co., 39 Up. Can. Q. B. 483. 50.- Proofs of loss cannot be furnished by a party to whom loss is made payable. Stanton v. Home Fire Ins. Co., 21 L. C. Jurist, 211 (Can.) 51. But when loss has been made payable to a third party, who becomes the owner of the goods insured by a warehouse receipt, the latter becomes the party insured, and can make and furnish all necessary proofs. Id., 24 L. C. Jurist, 38 (Can.) 52.- Policy insured one Jack as owner, and plaintiff as mortgagee, loss, if any, being made payable to latter, by whom it was obtained. Jack was an infant three years of age, a Mrs. Gleavey being guardian. After a fire, being unable to obtain proofs signed by assured or guardian, the plaintiff brought action against the owner, guardian, and insurance company, asking that guardian be directed to make, or that some proper To What Extent Bound by Proofs. another in his presence and at his instance, and adopted by him. Breckenridge v. American Cent. Ins. Co., 4 West. Rep. 565; 87 Mo. 62. person be appointed as special guardian was signed to the affidavit thereto, by to make, and who should be required to make, the necessary proofs; that the insurance company be adjudged to pay amount of loss, and that the limitation clause in policy for bringing of an action be not allowed to attach or take effect as against the plaintiff. Upon demurrer, held, sustaining the demurrer, that the action could not be maintained. Gra-proofs of loss shall be signed and sworn ham v. Phœnix Ins. Co., 77 N. Y. 171; aff'g, 12 Hun, 446. 53.- Policy insured Margaret E. Jack, as owner, and William Graham, mortgagee." Proofs of loss were made and furnished by the latter, and returned by the company with objection that they should be executed by owner, who was an infant three years of age, and suggesting necessity of a legal guardian. In an action by the mortgagee, held, that the plaintiff was primarily insured, and that the case was one of joint insurance, and that his act in furnishing proofs was the act of both the assured. Graham v. Phoenix Ins. Co., 17 Hun, 156 (N. Y.) 59.- Where the assured is a partnership, proofs of loss signed and sworn to by one of the partners sufficiently comply with the condition of the policy that to by the assured, unless the company makes specific objection at the time. Myers v. Council Bluffs Ins. Co., 72 Iowa, 176; 33 N. W. Rep. 453; 16 Ins. L. J. 885. 60. After the mortgagee of property damaged by fire has given the notice provided by the statute to the underwriter, he may furnish the preliminary proofs of loss. Nickerson v. Nickerson, 5 N. Eng. Rep. 798; 12 Atl. Rep. 880; 80 Me. 100. 61. A person other than the owner of the property, to whom a policy of fire insurance is made payable, without specifying his interest, may make the preliminary proofs of loss in his own behalf, notwithstanding an express provision in the 54.— Where loss is made payable to a policy to the contrary. *National Assur. mortgagee with "mortgagee clause" at- Co. v. Harris, 5 Mont. L. R. Q. B. 345 (Can.) tached, proofs of loss may be made and 62.- In an insurance policy issued to furnished by the latter, the owner re- the owner of lands covered by a mortfusing, and policy not expressly provid-gage, providing that the loss, if any, shall ing otherwise. Graham v. Firemen's be first payable to the mortgagee as inIns. Co., 8 Daly, 421 (N. Y.) terest may appear, the mortgagee is the 55. When condition of insurance re-assured, within the meaning of a condiquires statement of loss to be sworn to by assured, his failure to make such oath renders statement defective in a material respect. Spooner v. Vermont Mut. Ins. Co., 10 Ins. L. J. 737; 53 Vt. 156. 56.- Proofs may be made by an agent if assured is a non-resident, dead, absent or insane, and did not return in time to make them. German Fire Ins. Co. v. Grunert, 14 Ins. L. J. 844; 112 Ill. 68. 57.— It seems that proofs of loss may be executed by husband as agent cf his wife and the insured; in any event refusal of company to return them upon request for correction and execution by proper person operates as a waiver. Findeisen v. Metropole Fire Ins. Co., 15 Ins. L. J. 90; 57 Vt. 520. tion requiring the assured to deliver preliminary proofs of loss, being unable to get the owner to sign them. *Armstrong v. Agricultural Ins. Co., 56 Hun, 399; 31 N. Y. S. Rep. 20; 9 N. Y. Supp. 873; although rev'd, 130 N. Y. 560, the court of appeals do not appear to have decided this precise question. 63. The fact that one of the members of a partnership insured, added to his signature to the proofs of loss the word "Treas.," will not affect the validity of the proofs, where it does not appear to have been done to mislead the company or that such was its effect. *Karelsen v. Sun Fire Office, 122 N. Y. 545; 34 N. Y. S. Rep. 135; 20 Ins. L. J. 44; 25 N. East. Rep. 921. 58.- An objection to the admission of 64. To what extent bound by proofs. proofs of loss in evidence, on the ground If an incorrect statement of a material that they were not signed by the plaint-matter has been made through mistake iff, is untenable, where plaintiff's name in a notice and proof of loss which were As to Time. furnished to insurers, in compliance with 55 Mich. 432; Sibley v. Prescott Ins. Co., 14 Ins. L. J. 770; 57 Mich. 14. a requirement in the conditions of insurance annexed to a policy, and no amended statement has been furnished to the insurers before the trial of an action upon the policy, the insured cannot be allowed to prove the mistake, and show that the facts were not as therein stated. Campbell v. Charter Oak Fire & Marine Ins. Co., 10 Allen, 213 (Mass.) 65.— If a few articles are inadvertently omitted from the preliminary proofs, they may nevertheless be recovered for, if a suit is brought on the loss. Etna Ins. Co. v. Stevens, 48 Ill. 31. 66.- Although the inadvertent omission of an article in the preliminary proof, the company settling the loss promptly on the exhibited account, concludes the assured; yet if he is compelled to resort to a suit to recover the loss, he may prove the loss of any article so omitted from his account. Commercial Ins. Co. v, Huckberger, 52 Ill. 464. 67. It seems that the assured is bound by statement of the amount of his loss as claimed in the proofs, and can recover no more, although evidence on trial may tend to show the loss to exceed such amount. De Grove v. Metropolitan Ins. Co., 61 N. Y. 594. 72.- Assured not bound by proofs of loss as to the extent or amount of it; so held where he had been misled by an adjuster. Cook v. Lion Fire Ins. Co., 14 Ins. L. J. 863; 67 Cal. 368. 73.-- An incorrect statement or mistake inadvertently made by an assured in the preliminary proofs of loss may be afterwards corrected and explained by parol testimony, where the same explanation or correction has been asked for and given in substance by letter prior to the institution of the suit. *Hanover F. Ins. Co. v. Lewis, 10 So. Rep. 297; 21 Ins. L. J. 316; 28 Fla. 209. 74. As to time. Where preliminary proofs were made out in time, and handed to the company, and assured afterwards requested permission to take copies of them, but after repeated evasions the company finally refused to let assured make copies of them, whereupon assured made out a new set and gave to the company several months afterwards; held, that under the circumstances they were furnished in due season. Cornell v. Le Roy, 9 Wend. 163 (N. Y.) 75.- Where condition requires furnishing of proofs within certain specified time, they must be furnished in such time unless waived. Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 162. 68. Assured is not estopped by a statement in proofs of loss from proving the contrary or different fact. Parmelee v. Hoffman Fire Ins. Co., 54 N. Y. 193; s. P. McMaster v. Ins. Co. N. 4., 55 N. Y. 222; Cummins v. Agricultural Ins. Co., 67 N. Y. 260; overruling, Irving v. Excel-done at any time and the proofs are not sior Ins. Co., 1 Bosw. 507 (N. Y.) 69. Assured is not estopped by a sworn statement in his proofs of loss as to cause or origin of the fire, from showing contrary on the trial. Smiley v. Citizens' Fire Ins. Co., 14 W. Va. 33. 70.- Assured may be permitted to amend his proofs of loss and complaint upon the trial, so as to make the demand $2,000 instead of $800, as originally claimed; such amount being the full amount named in the policy. Miaghan v. Hartford Fire Ins. Co., 24 Hun, 58 (N. Y.) 71.- Assured is not estopped by his proofs of loss, and is not limited by them in his recovery upon a trial. Schmidt v. Mutual City Ins. Co., 14 Ins. L. J. 207; 76. When policy fixes no definite time for furnishing proofs of loss, assured may do so in a reasonable time, and if it is objected to on account of being too late, but are received and kept without objection, the company is estopped from setting up as a defense that the account was rendered too late. Palmer v. St. Paul Fire Ins. Co., 44 Wis. 201. 77. Notice of loss and furnishing of proofs are conditions precedent, compliance with which must be shown, unless waived. Nine days after limited time is too late. McDermott v. Lycoming Fire Ins. Co., 12 Jones & Sp. 221 (N. Y.) 78.- Policy required notice of loss forthwith, and that proofs should be furnished in fifteen days. Fire occurred January 17th. Next day assured notified local agent, who sent a dispatch to the general agent, and on the 23d assured As to Time. sent such agent a formal written notice, to send to the company for blanks to make which was received January 27th. Proofs out the proofs of loss, and when they were prepared January 22d, and received by the agent of the company "early in February," the agent not recollecting the date. Held, notice sufficient and evidence sufficient to sustain a finding that proofs were furnished within the required time. Peppit v. N. B. & M. Ins. Co., 1 Russel & G. 219 (N. S.) were received the insured made a full proof and sent it to the company, which received it without objection after the time prescribed in the policy, it is a reasonable explanation of the delay. American Cent. Ins. Co. v. Haws, 9 Cent. Rep. 413; 11 Atl. Rep. 107; 20 W. N. C. 370 (Pa.) 85.- Delay in rendering proofs of loss, unless made a condition of forfeiture, does not of itself necessarily avoid the policy or preclude a recovery. *Carpenter v. German-American Ins. Co., 52 Hun, 249; 23 N. Y. S. Rep. 51. 79. When a loss occurs on the night of the 29th and 30th of the month, and the plaintiff mails proofs on the 29th of the following month, which are received by the company on the 31st, condition requiring that they be furnished within 86.- An insurance policy which, while thirty days, it seems that there is suffi- it provides that the proof of loss shall be cient compliance with the condition. furnished as soon as possible, and that Badger v. Glens Falls Ins. Co., 49 Wis. 389. | the loss shall not be payable until the 79a.- When fire occurred Sept. 17, 1881, and proofs not served until May 15, 1882, the only reason given being that it was not convenient to furnish them before, held that it was not a compliance with condition requiring their service as soon as possible. Cameron v. Canada Fire &M. Ins. Co., 6 Ont. 392 (Can.) 80. Where the policy required that notice of loss should be given forthwith, and proof of loss as soon as possible, and no attempt was made to furnish such proof for more than nine months, the delay was held so unreasonable as to bar recovery. Scammon v. Germania Ins. Co., 101 Ill. 621. proofs are furnished, does not expressly stipulate that a failure shall work a forfeiture, while it distinctly states that the doing of certain specified acts shall be a cause of forfeiture, will be construed as not intending that the insured should forfeit his rights under the policy by mere delay in presenting the proofs of loss. *Sun Mut. Ins. Co. v. Mattingly, 77 Tex. 162; 13 S. W. Rep. 1,016. 87.- Where an insurance company has prescribed the conditions upon which the contract is to end, and omits to make the failure to furnish proof of loss within thirty days a cause of forfeiture, and fixes the limitation within which to sue on the 81.- When contract prescribes a cer- policy at six months, with a proviso that tain period for the furnishing of proofs no action shall be commenced until the the courts cannot substitute reasonable conditions of the contract have been comtime," as the measure of insured's obliga-plied with, a recovery will not be defeated tion. Bowes v. National Ins. Co., 4 Pugs- on the sole ground that the proof was not ley and B. 437, 452 (N. B.) 82. Under the old forms requiring proofs as "soon as possible" illness or physical disability was a sufficient excuse for delay. American Fire Ins. Co. v. Hazen, 15 Ins. L. J. 114; 1 Cent. Rep. 631; 110 Pa. 530. 83.- Where a policy provided that a particular account of the loss should be furnished the company, but no time was prescribed for furnishing the same,-held, that a reasonable time was to be allowed, and that such time would depend on circumstances. Miller v. Hartford Fire Ins. Co., 70 Iowa, 704. 84.- Where the insurance agent had furnished within the time limited. *Kenton Ins. Co. v. Downs, 19 Ins. L. J. 923; 13 S. W. Rep. 882. 88.- In a contract of insurance requiring immediate notice of loss, but fixing no time for proofs of loss, a reasonable time for such proofs is allowed. *Springfield F. & M. Ins. Co v. Brown, 128 Pa. 392; 24 W. N. C. 516; 47 Phila. Leg. Int. 376; 18 Atl. Rep. 396. 89.- The Pennsylvania Act of June 27, 1883, providing that proofs of loss within twenty days shall be sufficient, is for the protection of persons insured, and does not exact proof within that time. Id. 90.- A failure to make proofs of loss As Affecting Time to Sue within the number of days provided by the policy, which simply provides that until such proofs are furnished the claim shall not be due or payable, will not operate as a forfeiture, but will only postpone the right of action until they are supplied. *Tubbs v. Dwelling House Ins. Co., 84 Mich. 646; 20 Ins. L. J. 463; 48 N. W. Rep. 296. 91.- A policy will not be invalidated by the fact that the assured in her proofs of loss included some articles that were not her property, where she had no intention of defrauding the company, and supposed they were included in the policy. Id. 92.- A provision in a fire policy, that proofs of loss must be furnished within a stated time after the fire, is waived where, after the time limited, the parties enter into a written agreement to submit the amount of the loss to appraisement, notwithstanding a provision in the policy that the company shall not be held to have waived any provision or condition of the policy by any requirement, act, or proceeding on its part relative to the appraisal. *Bishop v. Agricultural Ins. Co., 130 N. Y. 488; 42 N. Y. S. Rep. 369; 21 Ins. L. J. 345; 29 N. East. Rep. 844. 93.- Failure to make proofs of loss within the time specified in the policy forfeits the policy. *Gould v. Dwelling House Ins. Co., 21 Ins. L. J. 328; 51 N. W. Rep. 455; 90 Mich. 302. 1 In Case of Parol Contract. Ins. Co., 51 N. W. Rep. 1,122 (Wis.) 95. As affecting time to sue. Where a claimant, having presented proofs of loss that were clearly defective, and which were objected to by the insurers, and subsequently served perfect proofs, notifying the insurers that they were intended as of the time of the delivery of the former proofs, and merely to obviate any technical objections; held, that an action brought at a due period after the service of the defective proofs, but immediately after the delivery of the second proofs, was prematurely brought. Kimball v. Hamilton Fire Ins. Co., 8 Bosw. 495 (N. Y.) 96. Upon receipt of defective proofs, company may reject the proofs, with notification to the insured, or return them for amendment. Company has sixty days after making of amended proofs to decide whether to pay or replace. Suit brought within this time is premature. German American Ins. Co. v. Hocking, 16 Ins. L. J. 546; 6 Cent. Rep. 911; 115 Pa. 398; and see No. 10. 97. See also cases under section eighteen, Payment of Loss, Nos. 1 et seq. 98. Service by mail. Service of proofs by mail not received by the company is insufficient. Hodgkins v. Montgomery County Ins. Co., 34 Barb. 213 (N. Y.) 99.- Mailing proofs of loss, postage prepaid, is, in the absence of evidence that they were not received, presumptive evidence that they were received by the company in due course of mail. Bell v. Lycoming Fire Ins. Co., 19 Hun, 238 94. A policy of insurance providing under a distinct head from the conditions avoiding it, that all proceedings after a loss shall be in accordance with an indorse-(N. Y.); Killips v. Putnam Ins. Co., 28 ment providing that proofs of loss shall Wis. 472. be furnished in thirty days, that the claim 100. In case of parol contract. In shall not be due or payable until sixty an action for breach of contract to indays after full completion of the require-sure property, where no policy has been ments, and that no suit shall be com- issued, failure to make proofs of loss as menced after six months, is not avoided by failure to furnish proofs of loss in thirty days, but the effect of such failure is merely to postpone the time of payment. *Hall v. Concordia F. Ins. Co., 51 N. W. Rep. 524 (Mich.) 94a.- Failure to furnish proofs within the prescribed time merely operates to postpone the maturity of a claim, the policy nowhere making the failure to render proofs within the time named operate as a forfeiture. *Vangindertaelen v. Phænix required by the company's policies such as the one agreed upon would have been if issued is no defense. Campbell v. American F. Ins. Co., 73 Wis. 100; 40 N. W. Rep. 661. 101.- In an action on a contract for insurance, where the policy has not been issued as agreed, before the loss, failure to give notice of the loss and a statement of its particulars, as required by the policies such as the defendant company usually issued in such cases, is a defense. |