66 So. 780 | Miss. | 1914
delivered the opinion' of the court.
This suit was instituted in the court below by appellee, who will be hereinafter called the “plaintiff,” to recover of appellant, who will hereinafter be called the “defendant,” the value of one horse, the property of the plaintiff, and the life of which was insured in defendant company. At the close of the evidence defendant asked, and was refused, a peremptory instruction, and upon the cause being submitted to the jury there was a verdict and judgment for the plaintiff. The refusal of this peremptory instruction is assigned for error.
The policy sued on provides:
“Upon the death of each animal insured hereby the insured shall immediately notify the home office at Providence, Rhode Island, by telegrah, and shall send a registered letter within twenty-four hours, and shall not dispose of the body until this company has identified such animal so deceased, without the order therefor in writing of said company, and shall as soon as possible thereafter mail, or deliver to this company proofs of such death sat*327 isfactory to this company, and upon and in compliance with forms issued by said company.” '
Immediately upon the death of the horse the defendant was notified thereof in accordance with this provision of the policy, whereupon it telegraphed the plaintiff to “saw off sufficient portion lowei; jaw to retain front teeth send us,” which request was by the plaintiff complied with. Nothing further seems to have been done in the matter until about one month thereafter, when Messrs. Pollard & Hamner, plaintiff’s attorneys, wrote defendant reminding it of what had occurred, and requesting payment for the death of the horse. This letter was not answered by the defendant, and about ten days thereafter these attorneys again wrote the defendant as follows:
“We wrote you several days ago in regard to the claim of Willis Nero against you but have not been favored with a reply to that letter. Please give us an immediate reply as we do not want to enter suit on it unless we are forced to do so to collect the money. We will hold the matter until Monday next, July first, at which time suit will be filed unless the claim is paid. ’ ’
To this letter defendant replied as follows:
“Tour letter states that you are going to bring suit in the matter of Willis Nero on the first of July, unless this claim is paid.
‘ ‘ This man has no claim against us. He never has complied with the'conditions of our policy. We do not think that he has any claim whatever, but if he thinks that he has, or if you think that he has, he should present it in the manner prescribed in the policy, at which time we will take such action as the facts warrant.”
This suit was then instituted. One of the grounds upon which it is sought to uphold the defendant’s claim for a peremptory instruction is that the plaintiff failed to furnish proofs of loss as provided in the policy. To this contention there are two sufficient answers:
’ 2. The policy itself provides that proofs of loss should be made “upon and in compliance with forms issued by” the defendant. This provision of the policy could not be complied with unless the defendant furnished to the plaintiff a “blank” or “form” upon which to make the necessary proof and by which he would also be advised of the character of proof desired; and no such blank or form was furnished to him. The defendant was notified of the death of this horse, and if it desired further proof thereof, additional to that called for in its telegram, it should have complied with the terms of its policy by furnishing to the plaintiff a blank or form upon which to make it.
Cooley, in his briefs on the Law of Insurance (page 3517), refers to the fact that “in Missouri it is provided by statute that a failure of the company to furnish blanks shall estop it to complain of insured’s failure to furnish the proofs,” and states that:
“In the absence of statute the company will not be es-topped by a failure to deliver blanks, unless the insured had some reason under the policy, or on account of the company’s promises, to expect it to furnish the blanks.”
This seems to be authority for the rule we have here applied, for the statement is that the company will not be estopped “unless the insured had some reason under the policy ... to expect it to furnish blanks,” and here the policy itself expressly so provides. In the cases cited by Cooley in support of this text (other than Coldham v. Amer., etc., Co., 8 Ohio Cir. Ct. R. 620, which we have not examined), there was no provision in the policy that proofs of loss should be made upon forms issued by the company.
But it is said that the peremptory instruction should have been given for the reason that the policy provides
1. The record does not disclose that the policy contains any such provision. As it appears in the record, the provision of the policy referred to is as follows:
“That upon and dating from the receipt of satisfactory proof of the death of one or more of said animals to pay the said insured, his executors, administrators or assigns, a sum of not exceeding the sum at which deceased animal or animals are rated in said rider attached hereto within delivery of this policy, which is made while any of these animals are not in good health, shall not be valid or binding on the company. ’ ’
This reason for upholding the refusal of the peremptory instruction is not set forth or relied upon in the brief of counsel for appellee, and it may be that the policy in fact contains such a provision, and that an error was made in copying it into the record. We must try the case, however, on the facts disclosed by the record, and not upon the facts disclosed by the briefs of counsel.
2. This provision of the policy, conceding that it contains such, was waived by defendant’s absolute denial of all liability. Such a provision “applies only where the insurance company agrees to pay, or is undecided in regard to paying, hut not when it peremptorily refuses to pay the loss.” While the defendant’s letter to Messrs. Pollard & Iiamner suggested that the plaintiff present his claim “in the manner prescribed in the policy,” it