55 Mo. App. 149 | Mo. Ct. App. | 1893
This is an action on an insurance policy to recover damages by fire to building insured. The plaintiff owned a double brick building, the north part of which was covered by the policy sued on, and the south part by a policy in another company.
The policy provides that “if fire occurs the assured shall, within sixty days, render a statement to the company under oath, stating, among other things, all other insurance, whether valid or not, covering any of said property, and a copy of all the descriptions and schedules in all policies, * * * and shall furnish, if required, verified plans and specifications of any building destroyed or damaged.” It also provides that no suit for the recovery of any claim shall be sustainable in any court until after full compliance by the insured with all the foregoing requirements. The policy also provides: “It shall be optional, however, with this company to * '* * repair, build or replace the property lost or damaged with other of like kind and quality within a reasonable time on giving notice, within thirty days after the receipt of the proof herein required, of its intention so to do.”
A fire occured on June 3, 1892, which 'burned both buildings, including the party wall. On July 11,1892, plaintiff caused proof of loss to be forwarded to defendant, which was received by defendant July 18, and on July 20 the proofs of loss were returned to plaintiff, and the following specific objections made thereto: “The proofs treat the damage to two buildings combined, each of which appears to be separately insured
On July 27, 1892, plaintiff, in response to the above objections, made out and forwarded a second proof of loss, in which was set forth, first, an accurate description of the property covered by the policy sued on; second, the destruction of the building by fire and the cause of the fire as nearly as the assured waS able to state; third, his interest in the property; fourth, the cash value of the building before the fire; fifth, by whom and for what purpose it was occupied and used at the time of the fire, and, sixth, that its walls were 'thirteen inches thick and about twenty-two feet high, in a 22x44-foot building. “Joists were 2x12 in lower ceiling and floors, and 2x10 in upper ceiling, all oak, two coats of plastering on the whole inside, except lower ceiling, which is ceiled with best ceiling; all walls and lower ceiling were papered; partition walls upstairs across the room, making two apartments. 'This partition wall without studding and papered on ■each side, with a partition door. The stairway which led from the upper to the lower corner of the building was removed from its original place, on the inside of .said building, to the rear end of the same, and was a
This proof, it was admitted, was timely received by defendant. It does not appear that the defendant made any further objection to the proof of loss, though the defendant’s adjuster testified that he mailed objections thereto to plaintiff, which plaintiff testified was. never received by him or anyone for him. At the trial this proof was admitted in evidence over the objection of defendant.
After the second proof of loss was forwarded by Mr. Quinn, who made out and forwarded the same for plaintiff, he had a conversation with W. S. Early, the' agent from whom plaintiff procured the policy in defendant company, and who was still the local agent of defendant at Centr-alia, in which conversation it was stated by Early that there would be no trouble about the insurance, but he said there was some little irregularity in the policy, but he said the principal was from the home company. They claimed, I believe, that the-policy did not cover the annex, or that it did not cover' the new part, and, if they could discount pro rata on that, it would settle it. He said with the Hartford company there is no trouble whatever, she would pay up all right. This statement of Mr. Early was communicated to the plaintiff.
The judgment was for plaintiff, and defendant-appealed.
II. The defendant further complains of the action of the tidal court in admitting in evidence the declaration of Early, the agent who issued the policy and
III. As to whether there was a waiver or not, was a question of fact to be determined by the court sitting as a jury. Loeb v. Ins. Co., supra; Gale v. Ins. Co., 33 Mo. App. 664; O’Key v. Ins. Co., 29 Mo. App. 105. And since there was substantial evidence adduced to sustain the finding of the trial court, it is conclusive on us. Swayze v. Bride, 34 Mo. App. 414; Smith v. Zimmerman, 51 Mo. App. 519.
IY. The trial court, we think, committed no error in declaring the law as requested by plaintiff, to the effect that, if the proofs of loss were not as full and complete as required by the conditions of the policy, yet, if the defendant received the proofs within sixty days after the date of the fire and kept the same without notifying the plaintiff of any objection thereto, but he was informed by the agent of defendant who issued the policy, prior to the expiration of the sixty days after the fire occurred, that the plaintiff’s claim was all right and would be paid, then defendant waived further proof of loss. There was evidence upon which to base the theory of this instruction, and there is no objection perceived to its correctness as a legal proposition.
The judgment is for the right party and must be-affirmed.