Page images
PDF
EPUB

128 Ala. 477, 30 So. Rep. 665; Milwaukee Mechanics' Ins. Co. v. Winfield, 6 Kans. App. 527, 51 Pac. Rep. 567; Willis v. Germania Ins. Co., 79 N. C. 285; Home Ins. Co. v. Myer, 93 Ill. 271; Graves v. Merchants’ Ins. Co., 82 Iowa, 637, 49 N. W. Rep. 65. And as to communication of a notice of loss to the company, through its local agent, see also Burlington Ins. Co. v. Lowery, 61 Ark. 108, 32 S. W. Rep. 383; Powers v. New England Ins. Co., 68 Vt. 390, 35 Atl. Rep. 331; Oakland Home Ins. Co. v. Davis (Tex.), 33 S. W. Rep. 587; Omaha Ins. Co. v. Dierke, 43 Neb. 569, 61 N. W. Rep. 740, 745.

3. Thompson v. Traders’ Ins. Co., 169 Mo. 12, 68 S. W. Rep. 889; McClelland v. Greenwich Ins. Co., 107 La. 124, 30 So. Rep. 691; Petit v. German Ins. Co., 98 Fed. Rep. 800.

In California service of notice on the agent who countersigned the policy appears to be sufficient. Bemero v. South British & National Ins. Co., 65 Cal. 386.

A local agent may be clothed with apparent authority to receive the notice. Kendall v. Holland Purchase Ins. Co., 2 T. & C. 375, affd. without opinion, 58 N. Y. 682; Van Allen v. Farmers’ Ins. Co., 10 Hun, 397, affd., 72 N. Y. 604. And see Snyder v. Dwelling-House Ins. Co., 59 N. J. L. 544, 37 Atl. Rep. 1022, 26 Ins. L. J. 905, revg. 59 N. J. L. 18, 34 Atl. Rep. 931, 25 Ins. L. J. 715.

RULE II.

Death of Insured Does Not Dispense with Necessity of Notice.

Death of the insured does not dispense with the necessity of giving notice of loss; it is the duty of executor named in a will, even before probate, or of some one interested as legal representative, heir, or legatee, or otherwise, to comply with the condition in accordance with Rule 4.

Matthews v. American Central Ins. Co., 9 App. Div. 339, affd., 154 N. Y. 449, 48 N. E. Rep. 751.

TITLE III. Duty to Protect Property from Further Damage. RULE 1. Duty to protect property from further damage im

posed by contract.
2. Company not liable for increased damage caused by

assured's neglect to perform duty — Limitation.
3. Duty of assured extends to buildings and walls.
4. Duty of assured as to vessel or boat -- Total loss.

RULE 1. Duty to Protect Property from Further Damage Imposed by

Contract. Property must be protected by the insured from further damage.

This duty is imposed by above terms in the standard form of policy prescribed in: New York,

North Carolina,
Connecticut,

North Dakota,
Louisiana,

*Pennsylvania,
Michigan,

Rhode Island,
Missouri,

Wisconsin.
New Jersey,
By the standard form of policy prescribed in:
Maine,

New Hampshire,
Massachusetts,

South Dakota, Minnesota, this specific clause is omitted but is substantially covered by the duty imposed under “Duty to Save and Preserve,” Rule i.

In the States where no standard form is prescribed and other than those above named, the New York standard form is in general use.

RULE 2.

Company not Liable for Increased Damage Caused by Assured's

Neglect to Perform Duty - Limitation. The insurance company is not liable for such further damage when caused by failure or neglect of the in

* See note to “Duty to Save and Preserve Property," Rule 1,

sured 10 coli l-ġ li preceding rule; as, for instance, tie further or increasiu uamage caused by omission on the insured to dry or clean the property wet by Wuter;' juu criw i ule uoes not require use of means to restore io (cruiiicn before the ire.2

1. Sisk v. Citizens' Ins. Co., 16 Ind. App. 565, 45 N. E. Rep. 801.

2. Hoffman v. Etna Ins. Co., 1 Robt. 501, affd., 32 N. Y. 405.

KULE 3

Duty of Assurer Extends to Buildings and Walls. The duty of insured to protect from further damage is not coníned to personal property, but extends to buildings or their walls.

Alter v. Home Ins. Co., 50 La. Ann. 1316, 24 So. Rep. 180.

RULE 4.

Duty of Assured as to a Vessel or Boat — Total Loss. It is the duty of insured to raise a vessel damaged and sunk in progress of a fire, and protect it from further damage; if the insurance company, on assured's request, raise the boat, the expense is properly deducted from claim on the policy;' but a total loss may, however, be established by proper competent testimony without raising the vessel.?

1. Hebner v. Palatine Ins. Co., 157 Ill. 144, 41 N. E. Rep. 627.

2. Jackson v. British America Assur. Co., 106 Mich. 47, 63 N. W. Rep. 899.

The application of this rule obviously depends upon the condition of the vessel at time of sinking.

The resnonsibility for expenses in raising a vessel was involved in Fire Ins. Assoc. v. Wickham, 141 U. S. 565, but owing to defective record was neither considered nor decided.

TITLE IV. Duty to Separate Damaged and Undamaged Property,

Inventory, and Exhibit Remains. RULE 1. Duty of insured to separate damaged and undamaged

personal property, inventory and exhibit remains as

imposed by contract. 2. Inventory distinct from proof of loss. 3. Object of separation and inventory — Effect of failure

to perform duty. 4. Expense rests upon assured — Performance not re

quired when damage trifling. 5. Substantial compliance sufficient. 6. Performance not required when property totally de

stroyed — When not practicable. 7. Insured may dispose of damaged property after reasonable notice.

RULE 1. Duty of Insured to Separate Damaged and Undamaged Personal

Property, Inventory and Exhibit Remains as Imposed by Contract.

If fire occur the insured shall forthwith separate the damaged and undamaged personal property, put it in the best possible order, and make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon. The insured, as often as required, shall exhibit all that remains of the property described.

This duty is imposed by above terms in the standard form of policy prescribed in: New York,

North Carolina,
Connecticut,

North Dakota,
Louisiana,

* Pennsylvania,
Michigan,

Rhode Island,
Missouri,

Wisconsin.
New Jersey,

* See note to“ Duty to Save and Preserve Property,” Rule 1,

page 2.

This duty is not required in the standard form prescribed in:
Maine,

New Hampshire,
Massachusetts,

South Dakota,
Minnesota,
See Clement v. British America Ins. Co., 141 Mass. 298, 5
N. E. Rep. 847. Under New Hampshire form, the company has
right of “access to premises and property damaged."

In the States where no standard form is prescribed, and other than those above named, the New York standard form is in general use.

The word “forthwith” in above rule under well-settled prin-. ciples of construction means as soon as reasonably possible under the circumstances.

RULE 2.

Inventory Distinct from Proof of Loss. The inventory required is separate and distinct from the statement or proof of loss.

Clemens v. American Ins. Co., 70 App. Div. 435, 75 N. Y. Supp. 484.

See “ Statement or Proof of Loss."

RULE 3.
Object of Separation and Inventory - Effect of Failure to

Perform Duty.

The object of the separation, order, and inventory being to enable the insurance company or its representative to estimate the loss, the assured cannot immediately after the fire sort out or separate the undamaged property, sell it, and ship it, before the arrival of the company's adjuster, without violating the condition; it is the duty of assured to separate damaged and undamaged property, and if he fails in performance it may affect his right to recovery.?

1. Oshkosh Match Works v. Manchester Assur. Co., 92 Wis. 510, 66 N. W. Rep. 525.

2. Thornton v. Security Ins. Co., 117 Fed. Rep. 773.

« PreviousContinue »