Enos v. St. Paul Fire & Marine Insurance

Citations

• 4 S.D. 639
• 57 N.W. 919
• 1894 S.D. LEXIS 22

Syllabus

<p>1. If an insurance company, with knowledge of facts which render a policy voidable by them, deliberately claim and exercise a right which they can claim and exercise only by virtue of such policy, they thereby • waive the right to avoid on account of such facts.</p> <p>2. Where the policy confers upon the company the right to require the assured to submit to an examination under oath, and the company by virtue of such provision requires and make such examination, they cannot afterwards claim a forfeiture of the rights of the assured under the policy on the ground that, up to the time of such examination, the assured had not given notice of loss or furnished proof of the same.</p> <p>8. Where the answer of the company alleges that they required and caused such examination to be had, and the evidence shows that at such examination a person appeared, claiming to represent the company, and conducted such examination apparently for them, and afterwards, in reply to a letter from the assured to the company in regard to the written statement taken on such examination, the person writes an answer, purporting to be that of the company, written on one of the company’s letter heads, on which the person is advertised as the “adjustor” of the company, the jury may properly find that such person was the agent of the company.</p> <p>4. Evidence of such facts is competent and admissible upon the question of agency.</p> <p>5. Such evidence being before the jury, it is competent to show that such person undertook that the statement so made on such examination should be accepted as proof of loss, not as originally binding' on the company, but as the first step towards showing an estoppel against the company, to be complemented by other necessary steps or elements.</p> <p>6. If the company, on being informed that such person, so assuming to act as agent, had represented and undertaken that such statement should bo accepted as proof of loss, and that the assured was relying upon such