220 P. 747 | Mont. | 1923
delivered the opinion of the court.
Plaintiff instituted this action to recover upon a policy of hail insurance; he prevailed in the lower court, and defendant appealed.
The policy is a standard form which required notice of loss, proof of loss and contained the following provision, and other provisions of like import: “No officer, agent, or other representative of this company shall have the power to waive any provision of this policy, except such as by the terms of this policy may be the subject Of agreement indorsed hereon or added hereto; and as to such provisions or conditions no officer, agent, or representative shall have power or be deemed or held to have waived such provisions or conditions until such waiver, if any, shall be written upon or attached hereto.”
There is not any conflict in the evidence. Plaintiff gave the required notice of loss but did not furnish proof of loss. He was permitted to recover upon the theory that the policy provision for proof of loss had been waived by the insurance company. Three questions only are argued in appellant’s brief:
1. It is urged that the complaint does not disclose “that the insured crop was damaged in any specific sum.” It is alleged: That plaintiff and defendant entered into the contract by the terms of which defendant insured plaintiff’s
2. The acts and declarations upon which plaintiff relied as constituting a waiver of the provision requiring proof of loss were principally the acts and declarations of one Slater, who, plaintiff alleges, was the representative of the insurance company and the adjuster sent by the company to adjust this loss. The general denial clause contained in the answer raised an issue as to Slater’s representative capacity, and it is now insisted that the evidence is insufficent to charge the defendant company with responsibility for Slater’s conduct.
As preliminary to the introduction of evidence of waiver, the burden was upon plaintiff to prove that Slater was the representative of the defendant company. Without objection plaintiff testified: “An adjuster was sent to me by the company for the purpose of adjusting this loss. That was somewhere around thirty or forty days — I couldn’t say — it was not later than six weeks after the loss. The adjuster’s name was Slater. ’ ’ While the evidence is somewhat meager, still the existence and extent of Slater’s authority were matters peculiarly within the knowledge of defendant. It did not offer any evidence to controvert that produced by plaintiff, and did not even cross-examine the plaintiff as to the source or extent of his informa
3. It is earnestly insisted, however, that, even though Slater was defendant’s representative, neither he, nor Pierce, nor Moe (the latter two admittedly defendant’s adjusters), nor all of them together, had, or could have authority to waive the provision requiring proof of loss; that the contract of insurance in express terms withheld that authority, and that the plaintiff is bound by the terms of the contract first quoted above. Numerous authorities are cited in support of this contention, but they are beside the point. Section 8145, Revised Codes of Montana of 1921, provides: “Delay in the presentation to an insurer of notice or proof of loss is waived, if caused by any act of his or if he omits to make objection promptly and specifically upon that ground.” In plaintiff’s negotiations with Slater, Pierce, and Moe there was never a suggestion, so far as the record discloses, that failure to adjust or .pay this claim was caused by the absence of proof of loss, or that plaintiff’s failure to furnish proof of loss was relied upon by the insurance company. On the contrary, plaintiff was lulled into a sense of security by the acts and declarations of these agents. The statute above was intended to prevent just such a fraud as was apparently attempted to be perpetrated in this instance. Its provisions were read into and formed a part of the contract of insurance, and to whatever extent those provisions conflict with the express provision of the policy, the statute is controlling. (Reeves v.
However, further discussion of this subject is unnecessary. In Snell v. North British & Mercantile Ins. Co., 61 Mont. 547, 203 Pac. 521, and Pasherstnik v. Continental Ins. Co., 67 Mont. 19, 214 Pac. 603, this court determined the matter adversely to defendant’s contention, and it must now be accepted as the rule in this state that, notwithstanding the iron-clad clause above, an insurance company through its proper agents may waive the provision for proof of loss.
The judgment is affirmed.
Affirmed.
