§ 765. Non-waiver agreements. The insurer is placed in a difficult position when he seeks to avoid waiving such defences as he may have. If he objects to the proofs of loss as insufficient, he is thereby held by many courts to waive other defences. If, on the other hand, he does not object to the proofs of loss as insufficient, he is said to waive any defects that there may be in them. Doubtless he may expressly object to liability on more than one ground. Whether he could reserve all rights by the broad statement after loss that he waived nothing, or reserved the right to take any objection which the facts might warrant, may possibly be doubted as matter of positive law, in some States at least; 55 though, on principle, it is hard to see why he may not assert that the in regard to it was such as naturally to throw the plaintiffs off their guard, and it appears that they did not read this stipulation nor consult counsel about their claim until after the sixty days had expired. We think they naturally might infer from the defendant's conduct that the claim was to be considered and determined upon its merits, and that there was no intention to set up a formal or technical defence, founded on the time or manner of presenting the claim. We are of opinion that there was evidence for the jury on the question whether the defendant waived its right to rely upon this defence. Walker v. Lancashire Ins. Co., 188 Mass. 560, 75 N. E. 66; Graves v. Washington Ins. Co., 12 Allen, 391; Searle v. Dwelling House Ins. Co., 152 Mass. 263, 265, 25 N. E. 290; Brown v. Henry, 172 Mass. 559, 567, 52 N. E. 1073; Moore v. Wildey Casualty Co., 176 Mass. 418, 57 N. E. 673; Hill v. Western Union Telegraph Co., 85 Ga. 425, 11 S. E. 874; Hays v. Western Union Telegraph Co., 70 S. C. 16, 48 S. E. 608; Western Union Telegraph Co. v. Stratemeier, 6 Ind. App. 125, 130, 32 N. E. 871." In regard to the same question the court said in Stone v. Postal Telegraph Cable Co., 35 R. I. 498, 503, 87 Atl. 319, 46 L. R. A. (N. S.) 180: "In regard to the message of August 26th, 1909, the plaintiff bases his contention that the defendant had waived the provision that it would not be liable for damages if the claim was not presented within sixty days after the message was filed for transmission upon the following facts: On August 27th he made a verbal complaint to an employee at the Providence office of the defendant because the message of August 26th had not been delivered at his office, and on September 11th, 1909, he made another verbal complaint to the manager of the Providence office of the defendant, with regard to the same matter; also when the plaintiff presented to the defendant the written notice of his claim for damages for its failure to deliver the several telegrams in question at the plaintiff's office, the defendant made no objection to the claim of loss as to the telegram of August 26th on the ground that the plaintiff had failed to give the defendant written notice of his claim within sixty days. These facts fall far short of establishing a relinquishment by the defendant of its right to insist upon the provisions of said stipulation." 55 See Interstate &c. Accident Assoc. v. Greene, 132 Ark. 546, 201 S. W. 799. sured must at his peril comply with all conditions, and that he himself waives nothing, but insists on strict performance. A more certainly effective way to achieve the desired result is by a bilateral agreement of both parties instead of a unilateral declaration of the insurer.56 It is also often provided in the original policies of insurance that the requirements of the insurer in the way of proof, examination and appraisal, shall not constitute a waiver. There is no possible reason in the law of contracts why full effect should not be given to such a provision and generally this has been so held.57 The insurer may indeed as has been pointed out orally dispense with this requirement to the same extent that he may so dispense with any other requirement; 58 but when the parties have expressly agreed whether orally or in writing that certain acts otherwise ambiguous shall not be taken to have a certain meaning, that meaning should not be attributed to them. The result is the same where a separate non-waiver agreement is signed by the parties.59 A few courts, however, have confused the situation here presented with the case of election. Where a party may choose one of two alternative benefits, he cannot take both even though he asserts that he intends to do so, and that his claim of one right shall not bar him from asserting the other. But even in such a case if the other party Urbaniab v. Firemens' Ins. Co., 227 Mass. 132, 116 N. E. 413. Phoenix Ins. Co. v. Flemming, 65 Ark. 54, 44 S. W. 464, 39 L. R. A. 789, 67 Am. St. Rep. 900; Phenix Ins. Co. . Searles, 100 Ga. 97, 27 S. E. 779; Boyd v. Insurance Co., 90 Tenn. 212, 16 S. W. 470, 25 Am. St. Rep. 676; City Drug Store v. Scottish Union & Nat. Ins. Co. (Tex. Civ. App.), 44 S. W. 21; Oshkosh Match Works v. Manchester Fire Ass. Co., 92 Wis. 510, 66 N. W. 525. See also Queen Insurance Co. v. Young, 86 Ala. 424, 5 So. 116, 11 Am. St. Rep. 51 (n.); Holbrook . Baloise Fire Ins. Co., 117 Cal. 561, 49 Pac. 555; Briggs v. Fireman's Fund Ins. Co., 65 Mich. 52, 31 N. W. 616; Johnson v. American Ins. Co., 41 58 Beauchamp v. Retail Merchants' &c. F. Ins. Co., 38 N. Dak. 483 165, N. W. 545, and see infra, § 1828. 59 Insurance Company of N. America v. Williams, (Ala. 1917), 77 So. 159; Fletcher v. Minneapolis &c. Ins. Co., 80 Minn. 152, 83 N. W. 29; Urbaniak v. Firemen's Ins. Co., 227 Mass. 132, 116 N. E. 413; KeetRountree, etc., Co. v. Mercantile, etc., Co., 100 Mo. App. 504, 74 S. W. 469; Hayes v. United States F. Ins. Co., 132 N. C. 702, 44 S. E. 404. 60 See supra, § 684. to the contract expressly agreed that the assertion of one right should not exclude the other, this agreement should be enforced. Still more obviously this is true where, as in the case under discussion the only choice presented to the insurer is whether he will pay the loss without receiving any compensating advantage, or whether he will refuse to pay.61 § 766. Whether a breach of condition avoids an entire policy insuring several articles. In a recent California decision,62 Sloss, J., speaking for the court, thus stated the law:-"The courts of a number of states have laid down the rule accepted by the trial court in the case at bar, namely, that where the property insured consists of different items which are separately valued or insured for separate amounts, the contract is divisible, and a breach of warranty or condition as to one item will not affect the insurance on the remainder of the property, even though the premium be entire.63 On the other hand, there are many cases 61 A non-waiver agreement was disregarded in Phoenix Assurance Co. v. Munger, etc., Mfg. Co. (Tex. Civ. App.), 49 S. W. 271. See also Pennsylvania Fire Ins. Co. v. Draper, 187 Ala. 103, 65 So. 923; Queen Ins. Co. v. Patterson Drug Co., 73 Fla. 665, 74 So. 807, L. R. A. 1917 D. 1091; Palatine Ins. Co. v. Whitfield, 73 Fla. 716, 74 So. 869; Corson v. Mutual Fire Ins. Co., 113 Ia. 641, 85 N. W. 806; Petroff v. Equity F. Ins. Co. (Ia.), 167 N. W. 660; Gibson Electric Co. v. Liverpool, etc., Ins. Co., 159 N. Y. 418, 426, 54 N. E. 23; Beauchamp v. Retail Merchants', etc., F. Ins. Co. (N. Dak.), 165 N. W. 545. Some courts restrict the meaning of the agreement to conditions essential to the life of the policy prior to loss, and do not apply it to stipulations required to be performed thereafter. Lusk v. American Central Ins. Co., 80 W. Va. 39, 91 S. E. 1078, and cases cited. 62 Goorberg v. Western Assurance Co., 150 Cal. 510, 513, 517, 89 Pac. 130, 10 L. R. A. (N. S.) 876. 63 Citing: Merrill v. Agricultural Ins. Co., 73 N. Y. 452, 29 Am. Rep. 184; Schuster v. Dutchess County Mut. Ins. Co., 102 N. Y. 260, 6 N. E. 406; Phoenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9, 81 Am. Dec. 521; Continental Ins. Co. v. Ward, 50 Kan. 346, 31 Pac. 1079; State Ins. Co. v. Schreck, 27 Neb. 527, 20 Am. St. Rep. 696, 43 N. W. 340, 6 L. R. A. 524; Commercial Ins. Co. v. Spankneble, 52 Ill. 53, 4 Am. Rep. 582; Loehner v. Home Mut. Ins. Co., 17 Mo. 247; Sullivan v. Hartford Fire Ins. Co., 89 Tex. 665, 36 S. W. 73; Manchester Fire Assur. Co. v. Feibelman, 118 Ala. 308, 23 So. 759; Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 Pac. 513; Clark v. New England Mut. Fire Ins. Co., 6 Cush. 342, 53 Am. Dec. 44; Bullman v. North British, etc., Ins. Co., 159 Mass. 118, 34 N. E. 169; Wright v. Fire Ins. Co., 12 Mont. 474, 31 Pac. 87; Coleman v. New Orleans Ins. Co., 49 Ohio St. 310, 31 N. E. 279, 16 L. R. A. 174, 34 Am. St. Rep. 565; Light v. Greenwich Ins. Co., 105 Tenn. 480, 58 holding that such contracts are entire, and that a breach of any condition or warranty vitiates the whole insurance, most of these decisions basing their conclusion on the ground that the premium was a single or gross sum.64 There is still another line of cases which take a middle ground between the extreme doctrines above stated and hold that the question of the severability of the contract in such cases depends upon the nature of the risk,―i. e., that where the property is so situated that the risk on one item cannot be affected without affecting the risk on the other items, the policy must be regarded as entire; but where the property is so situated that the risk on each item is separate and distinct from the risk on the other items, so that what affects the risk on one item does not affect the risk on the others, the policy must be regarded as severable.65 In our opinion, the rule declared in the cases last cited is supported by reason and tends to produce a just result. Whether a contract is entire or severable is a question of intention, to be determined from the language employed by the parties, viewed in the light of the circumstances surrounding them at the time S. W. 851; Connecticut Fire Ins. Co. v. 64 Citing Gottsman v. Pennsylvania Ins. Co., 56 Pa. 210, 94 Am. Dec. 55; Day v. Charter Oak F. & M. Ins. Co., 51 Me. 91; Plath v. Minnesota Farmers' Mut. Fire Ins. Assn., 23 Minn. 479, 23 Am. Rep. 697; Garver v. Hawkeye Ins. Co., 69 Ia. 202, 28 N. W. 555; Cuthbertson v. North Carolina Home Ins. Co., 96 N. C. 480, 2 S. E. 258; Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. 821, 52 L. R. A. 70, 78 Am. St. Rep. 216; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. 429, 30 L. R. A. 633, 51 Am. St. Rep. 457; McGowan v. People's Mut. Fire Ins., 54 Vt. 211, 41 Am. Rep. 843. 65 Citing: Havens v. Home Ins. Co., 111 Ind. 90, 12 N. E. 137, 60 Am. Rep. 689; Phoenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N. E. 546, 12 Am. St. Rep. 393; Pickel v. Phoenix Ins. Co., 119 Ind. 291, 21 N. E. 898; Worachek v. New Denmark, etc., Fire Ins. Co., 102 Wis. 88, 78 N. W. 411; Taylor v. Anchor Mutual Fire Ins. Co., 116 Iowa, 625, 88 N. W. 807, 57 L. R. A. 328, 93 Am. St. Rep. 261; Western Assurance Co. v. Stoddard, 88 Ala. 606, 7 So. 379; Republic County, etc., Ins. Co. v. Johnson, 69 Kan. 146, 76 Pac. 419, 105 Am. St. Rep. 157; Hartshorne v. Agricultural Ins. Co., 50 N. J. L. 427, 14 Atl. 615; Brehm Lumber Co. v. Svea Ins. Co., 36 Wash. 520, 79 Pac. 34, 68 L. R. A. 109; Herzog v. Palatine Ins. Co., 36 Wash. 611, 79 Pac. 287; Ætna Ins. Co. v. Resh, 44 Mich. 55, 6 N. W. 114, 38 Am. Rep. 228; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. 959; Baldwin v. Hartford Fire Ins. Co., 60 N. H. 422, 49 Am. Rep. 324. they contracted.66 In these cases the policy, insuring several classes of property, provides that it shall be void in certain events. In view of the settled rule that any uncertainty or ambiguity in a contract of insurance is to be interpreted most strongly against the insurer, it is proper to say that this language should not be given the effect of avoiding the policy as to every item insured in all cases. Where the warranty or condition which is broken does not affect the risk on certain items, the insurance should not be held to be ineffective as to those items. Such construction would subject the insured to a forfeiture for a cause which had no substantial relation to the interest of the insurer. "In the foregoing discussion we have laid no stress on the fact that the language of the policy is that 'this entire policy shall be void, if,' etc. In most of the cases cited above the word 'entire' did not appear in the policy in this connection. It has been held (sometimes even in jurisdictions where separate valuations are ordinarily regarded as rendering the contracts divisible) that the inclusion of this word makes the contract entire and indivisible.67 But there are also cases holding, in effect, that no valid distinction can be drawn between the words 'this policy shall be void' and 'this entire policy shall be void.' 68 In view of our conclusion that the policy in question is for other reasons an entire contract, it is not necessary in this case to express any opinion as to the effect of the use of the word 'entire' in a policy which in the absence of such word would be treated as divisible." To this statement it may be added that though it be granted that an insurance policy should be construed most strongly against the insurer, it is only by a somewhat strained construction that any part of a 66 Citing: Sterling v. Gregory, 149 Cal. 117, 85 Pac. 305. 67 Citing: Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136, 68 N. E. 706, 100 Am. St. Rep. 663; Germier v. Springfield F. & M. I. Co., 109 La. 341, 33 So. 361; Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. 429, 51 Am. St. Rep. 457, 30 L. R. A. 633; Martin v. Insurance Co. of N. A., 57 N. J. L. 623, 31 Atl. 213; McWilliams v. Cascade F. & M. I. Co., 7 Wash. 48, 34 Pac. 140. 68 Citing: Kiernan v. Dutchess County Mutual Ins. Co., 150 N. Y. 190, 44 N. E. 698; Fireman's Fund Ins. Co. v. Barker, 6 Colo. App. 535, 41 Pac. 513; Kansas Farmers' Fire Ins. Co. v. Saindon, 53 Kans. 623, 36 Pac. 983; Trabue v. Dwelling House Ins. Co., 121 Mo. 75, 25 S. W. 848, 42 Am. St. Rep. 523, 23 L. R. A. 719. |