17. Notice and proofs of marine losses. (a) Notice of loss. (b) Necessity and sufficiency of proofs of loss. (d) Estoppel and waiver as to proofs of loss. (e) Questions of practice. 18. Notice and proofs of loss in guaranty and indemnity insurance. (a) Employers' liability insurance Nature and necessity of notice of accident or claim. (b) Same-Sufficiency of notice. (c) Same Time of notice. (d) Same-Waiver of notice. (f). Credit insurance. 1. NECESSITY OF NOTICE AND PROOF OF LOSS. (a) Notice and proof of loss as condition precedent to recovery-General rule. (b) Special circumstances affecting application of rule. (c) Policy covering mortgagee's interest. (d) Demand for proofs. (a) Notice and proof of loss as condition precedent to recovery-General rule. Where, by the terms of a policy of insurance on property, the payment of the loss is to occur after the furnishing of notice and certain proofs thereof, the furnishing of such notice and proofs constitutes a condition precedent, which, in the absence of special rules of pleading, must be pleaded and proved by one seeking to recover under the policy. Reference to the following cases is deemed sufficient: Columbia Ins. Co. v. Lawrence, 10 Pet. 507, 9 L. Ed. 512; Gauche v. London & Lancashire Ins. Co. (C. C.) 10 Fed. 347; Fire Ins. Co. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; McCormack v. North British Ins. Co., 78 Cal. 468, 21 Pac. 14; Harris v. Phoenix Ins. Co., 35 Conn. 310; Jackson v. Southern Mut. Life Ins. Co., 36 Ga. 429; Home Ins. Co. v. Duke, 43 Ind. 418; Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N. E. 285; Mitchell v. Home Ins. Co., 32 Iowa, 421; Edgerly v. Farmers' Ins. Co., 43 Iowa, 587; American Cent. Ins. Co. v. Hathaway, 43 Kan. 399, 23 Pac. 428; Western Home Ins. Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; State Ins. Co. v. Belford, 2 Kan. App. 280, 42 Pac. 409; Cornell v. Hope Ins. Co., 3 Mart. N. S. (La.) 223; Battaille v. Merchants' Ins. Co., 3 Rob. (La.) 384; Leadbetter v. Etna Ins. Co., 13 Me. 265, 29 Am. Dec. 505; Davis v. Davis, 49 Me. 282; Allegre v. Maryland Ins. Co., 6 Har. & J. (Md.) 408, 14 Am. Dec. 289; Farmers' Fire Ins. Co. v. Mispelhorn, 50 Md. 180; Wellcome v. People's Mut. Fire Ins. Co., 2 Gray (Mass.) 480; Shawmut Sugar Refining Co. v. People's Mut. Fire Ins. Co., 12 Gray (Mass.) 535; Eastern R. Co. v. Relief Fire Ins. Co., 98 Mass. 420; Johnson v. Phoenix Ins. Co., 112 Mass. 49, 17 Am. Rep. 65; Boruszweski v. Middlesex Mut. Ins. Co., 186 Mass. 589, 72 N. E. 250; McCullough v. Phoenix Ins, Co., 113 Mo. 606, 21 S. W. 207; Lombard Investment Co. v. Dwelling House Ins. Co., 62 Mo. App. 315; McCann v. Etna Ins. Co., 3 Neb. 198; Roumage v. Mechanics' Fire Ins. Co., 13 N. J. Law, 110; Jones v. Mechanics' Fire Ins. Co., 36 N. J. Law, 29, 13 Am. Rep. 405; O'Brien v. Commercial Fire Ins. Co., 63 N. Y. 108; Hicks v. British America Assur. Co., 162 N. Y. 284, 56 N. E. 743, 48 L. R. A. 424; Jube v. Brooklyn Fire Ins. Co., 28 Barb. (N. Y.) 412; Furlong v. Agricultural Ins. Co., 64 Hun, 632, 18 N. Y. Supp. 844, 28 Abb. N. C. 444; Phoenix Ins. Co. v. Munday, 5 Cold. (Tenn.) 547; Scottish Union & Nat. Ins. Co. v. Clancy, 71 Tex. 5, 8 S. W. 630; Scottish Union & National Ins. Co. v. Clancy, 83 Tex. 113, 18 S. W. 439; St. Paul Fire & Marine Ins. Co. v. Hodge, 30 Tex. Civ. App. 257, 70 S. W. 574; Sun Mut. Ins. Co. v. Holland, 2 Willson, Civ. Cas. Ct. App. (Tex.) § 446; Donahue v. Windsor County Mut. Fire Ins. Co., 56 Vt. 374; Quarrier v. Peabody Ins. Co., 10 W. Va. 507, 27 Am. Rep. 582; Flanaghan v. Phenix Ins. Co., 42 W. Va. 426, 26 S. E. 513; Dowling v. Lancashire Ins. Co., 89 Wis. 96, 61 N. W. 76; Harriman v. Queen Ins. Co., 49 Wis. 71, 5 N. W. 12. Reference may also be made to Code W. Va. c. 125, § 64, providing that, where the defense is failure to perform a condition, defendant must plead the condition not performed, and Adkins v. Globe Fire Ins. Co., 45 W. Va. 384, 32 S. W. 194, intimating that thereunder insured need not plead or prove the furnishing of proofs of loss unless defendant brings the matter into the case by his pleadings. See, also, Rosenthal, etc., Co. v. Scottish Union & National Ins. Co. (W. Va.) 46 S. E. 1021 (a forfeiture case), overruling Schwarzbach v. Protective Union, 25 W. Va. 622, 52 Am. Rep. 227. In Phoenix Ins. Co. v. Deavenport, 16 Tex. Civ. App. 283, 41 S. W. 399, the court asserted a contrary doctrine. The policy provided that the loss should not be payable until 60 days after furnishing the proofs, but the court treated the case as one of forfeiture, holding that the defendant must specially set up its provisions in the answer and allege a breach. The case of Continental Ins. Co. v. Chase, 89 Tex. 212, 34 S. W. 93, cited in support of the holding, deals merely with a failure to furnish the proof within the specified time.1 1 As to failure to furnish notice or proofs within the specified time, see post, p. 3356. Ordinarily, under such provision, no question is raised as to whether the condition is precedent to liability of the company, or merely to the right of action on the policy, but, though payment by the company is made dependent on the furnishing of the proofs, it has been held that the proofs are but conditions precedent to the bringing of an action. Lebanon Mut. Ins. Co. v. Erb, 112 Pa. 149, 4 Atl. 8; German-American The furnishing of notice and proofs as required by the policy has been frequently held a condition precedent in cases in which the provision of the policy, if any, making the liability of the company dependent on fulfilling such requirements, did not clearly appear. Such was the fact in Lovejoy v. Hartford Fire Ins. Co. (C. C.) 11 Fed. 63; Fire Ins. Co. v. Felrath, 77 Ala. 194, 54 Am. Rep. 58; Central City Ins. Co. v. Oates, 86 Ala. 558, 6 South. 83, 11 Am. St. Rep. 67; Rockford Ins. Co. v. Seyferth, 29 Ill. App. 513; Peoria Marine & Fire Ins. Co. v. Walser, 22 Ind. 73; Barre v. Council Bluffs Ins. Co., 76 Iowa, 609, 41 N. W. 373; Burlington Ins. Co. v. Ross, 48 Kan. 228, 29 Pac. 469; Westchester Fire Ins. Co. v. Coverdale, 9 Kan. App. 651, 58 Pac. 1029; Nickerson v. Nickerson, 80 Me. 100, 12 Atl. 880; Wellcome v. People's Mut. Fire Ins. Co., 2 Gray (Mass.) 480; McGraw v. Germania Fire Ins. Co., 54 Mich. 145, 19 N. W. 927; Gies v. Bechtner, 12 Minn. 279 [Gil. 183]; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81; Hubbard v. North British & Mercantile Ins. Co., 57 Mo. App. 1; Fink v. Lancashire Ins. Co., 60 Mo. App. 673; German Ins. Co. v. Fairbank, 32 Neb. 750, 49 N. W. 711, 29 Am. St. Rep. 459; Inman v. Western Fire Ins. Co., 12 Wend. (N. Y.) 452; Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 162; Inland Insurance & Deposit Co. v. Stauffer, 33 Pa. 397; Texas Home Mut. Fire Ins. Co. v. Bowlin (Tex. Civ. App.) 70 S. W. 797; Fire Ins. Ass'n v. Miller Bros., 2 Willson, Civ. Cas. Ct. App. (Tex.) § 334; Ward v. National Fire Ins. Co., 10 Wash. 361, 38 Pac. 1127; Munson v. German-American Fire Ins. Co. (W. Va.) 47 S. E. 160; Blakeley v. Phoenix Ins. Co., 20 Wis. 205, 91 Am. Dec. 388. It has been held under the same principle that a provision in a policy that it shall not cover loss happening during the existence of a riot, unless proof be made that such loss was due to independent causes, entitles the company to demand such proof before being sued. (Royal Ins. Co. v. Martin, 24 Sup. Ct. 247, 192 U. S. 149, 48 L. Ed. 385). Of course, a provision for forfeiture in case of noncompliance with the requirement as to proofs will also be enforced. Gross v. St. Paul Fire & Marine Ins. Co. (C. C.) 22 Fed. 74; Alston v. The policy sometimes expressly provides that no action thereon shall be maintained until there has been a compliance by the insured with the provisions as to notice and proofs. In such cases it is, of course, incumbent on one seeking to recover under the policy, to show that the condition has been fulfilled. Ætna Ins. Co. v. People's Bank, 62 Fed. 222, 10 C. C. A. 342, 8 U. S. App. But in Lion Fire Ins. Co. v. Starr, 71 Tex. 733, 12 S. W: 45, it was held that a policy containing a clause requiring the assured to produce account books and vouchers was not avoided by failure or refusal to produce them, in the absence of an express provision for such forfeiture. And in Scottish Union & Nat. Ins. Co. v. Strain, 70 S. W. 274, 24 Ky. Law Rep. 958, where the provision as to the effect of a failure to comply with the policy requirement was not given, it was directly stated that the provision that in case of loss the insured should submit to an examination under oath by any person named by the company was not a condition precedent to an action on the policy. So, also, in Ætna Ins. Co. v. Miers, 5 Sneed (Tenn.) 139, an affidavit and certificate required by the terms of the policy were said by the court not to have been intended as a condition precedent to the liability of the insurers. (b) Special circumstances affecting application of rule. The provision of the policy as to proofs was held not applicable in an action brought under a statute (Code 1886, § 1206) providing that any person acting as agent for a foreign company not properly licensed should be liable personally to the holder of any policy of insurance in respect to which he so acted (Noble v. Mitchell, 100 Ala. 519, 14 South. 581, 25 L. R. A. 238). Nor did a provision in a fire and tornado policy that, "if fire occurs, the insured shall give immediate notice of loss," require notice of loss by a cyclone (Epiphany Roman Catholic Church v. German Ins. Co., 91 N. W. 332, 16 S. D. 17). Likewise, the duty of furnishing proofs is not imposed by a policy requiring that " shall give immediate notice in writing of loss, and furnish proofs," etc., omitting the name of the assured from the blank intended therefor (Prendergast v. Dwelling House Ins. Co., 67 Mo. App. 426). Where a policy of reinsurance provided that it should be subject to the same conditions and mode of settlement as the original policy, it was held that the reinsurer was not entitled to the same notice as was contracted to be given the original company. The court was of the opinion that the condition was introduced into the policy only to give the reinsurers the right to take advantage of any want of compliance with the contract between the original parties, so that, if the company reinsured failed to set up any defense. in connection with the proofs, the reinsurer might defend on the ground of such failure. North Pennsylvania Fire Ins. Co. v. Susquehanna Fire Ins. Co., 2 Pears. (Pa.) 291. And see, also, Consolidated Real Estate & Fire Ins. Co. v. Cashow, 41 Md. 50. New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Wend. (N. Y.) 359, is very similar. In that case the contract was one of reinsurance, and the provisions as to proof were those of the ordinary policy. The court held that the condition was met when the original insured gave the usual proofs, and they were forwarded to the reinsurer. Where, as in Woodfin v. Asheville Mut. Ins. Co., 51 N. C. 558, the insured becomes a member of a mutual company by taking out a policy, he thereby becomes bound by a by-law requiring, as a condition precedent to action on the policy, that a particular account on oath of the circumstances shall be given forthwith to the company, and no action can be sustained without a compliance with such by-law, although the provision was not embodied in the policy. But where it was provided by statute (St. 1864, c. 196) that the conditions of the insurance should be stated in the body of the policy, and that the by-laws should not be considered a part of the contract, except so far as they were incorporated into the policy, a provision that the policy was made and accepted with reference to the conditions therein contained and thereto annexed, which were declared to be a part of the contract, did not render binding on the insured a condition as to proofs, printed on the back of the policy. This, however, was accomplished by the promise to pay |