Bolan v. Fire Ass'n

58 Mo. App. 225 | Mo. Ct. App. | 1894

Ellison, J.

This action is founded on a policy of insurance issued to plaintiffs by the defendant company covering the loss of a barn. At the conclusion of evidence for plaintiffs, the court directed a verdict for defendant.

The policy required immediate notice of loss and in addition required proofs of loss to be given within sixty days after the fire'. No proof of loss was made and the case was'evidently determined by the court on the failure of plaintiffs to. show a waiver by the company within the sixty days limited for the proof. The effect of plaintiffs7 contention, in connection with his authorities, is that the waiver maybe effectual though the acts alleged as constituting the waiver occurred after the expiration of the time limited in which the proof could be made, and that there was evidence here tending to show the acts constituting the waiver occurred within the sixty days. If either contention is true the court erred in directing the verdict for defendant.

It is clear upon principle that when one has failed to comply with his contract, he should have a cause therefor which will justify him in the eye of the law. In this and similar cases, the alleged cause is some act or omission of the insurer. That is, such act or omission on the part of the insurer has caused the failure on the part of the assured. If the failure on the part of the assured has happened before the act or omission of the insurer, it is an absurdity to say the failure was caused by the insurer. It is said by a text writer that, “A failure to give the notice in due time, * * * leaves the insured entirely at the mercy of the insurers, and to point out to him the fact, will not, in Ihe least, aid him to remedy the defect. The omission to point it out to him, is, therefore, no wrong or prejudice or want of good faith towards him, nor is the insurer under anyjegal obligations so to do.77 2 May on Ins., sec. 464. We have, therefore, on more than one occasion decided that where the limit is a certain time stated, the act or omission of the insurer which is relied upon by the assured as excusing him from a performance of .his agreement to furnish proofs of loss must occur during the currency of the time within which the proof must be furnished. Such act or omission happening during the time when the assured may yet perform his contract misleads him into the belief that the insurer does not desire a performance. Irwin v. Ins. Co., 24 Mo. App. 151; Gale v. Ins. Co., 33 Mo. App. 672. The supreme court announces the same principle in St. Louis Ins. Co. v. Ryle, 11 Mo. 278. The text writers have but one opinion on the subject. 2 Woods on Insurance, 947, 948; 2 May on Insurance, supra; Porter on Insurance, 194; Richards on Insurance, sec. 85.

There may be a waiver by the insurer after the time, by a line of conduct on its part which operates upon the parties in the nature of an estoppel. There may be a line of conduct adopted by the insurer which will induce the assured to alter his position to his prejudice. The assured may be led into additional expense by the insurer in relation to the loss. The strongest cases in favor of waiver after the time has elapsed have presented, so far as I have examined, the elements of estoppel in their essential features. Of these see: Goodwin v. Ins. Co., 73 N. Y. 480; Brink v. Ins. Co., 80 N. Y. 108; Prentice v. Ins. Co., 77 N. Y. 483. In the last case the court said: “It is now understood to be the doctrine of this court that no new consideration is required to support a waiver by an insurance company of a condition in respect to time of serving proofs of loss, and that it may be done by acts and conduct indicating an intention to waive such condition, occurring subsequent to the breach of the condition, although there may be no technical estoppel.” Yet the remarks of the foregoing nature have been addressed to cases presenting the elements of estoppel. It is stated in 2 Wood, Insurance, 947: “The question, as to whether a failure on the part of the insurer to object to the unseasonableness of the proofs of loss, furnished after the forfeiture has attached, can be set'up as a waiver, does not seem to be free from doubt. It has been held that such failure operates as a waiver, but generally it will- be found that the delay has been induced by such acts and conduct on the part of the insurer or his agents as amounts to an estoppel, rather than a waiver, and the better doctrine seems to be, and that more consistent with principle, that, when the failure to comply with the' condition is due wholly to the fault of the insured, the policy is dead, and can not be revived by anything short of a new consideration or an express waiver on the part of the insurer.”

We have, however, been cited by plaintiff in support of his contention to the case of Loeb v. Ins. Co., 99 Mo. 50. In that case there was evidence of what occurred as to proofs of loss between the adjuster for the insurance company and the insured after the time for furnishing the proof had expired. But there was also evidence of the company’s local agent having, before the time expired, induced plaintiff to delay with the proof. It may be (the matter is not clear) that evidence of what occurred between the parties after the time for proof had expired, was received, not, of itself, to establish a waiver but rather to connect with what occurred before the time expired, so as to establish that the waiver was in fact made before the expiration of the time. But certain it is that the court in that case approves of an instruction given for defendant which in effect restricts the waiver to the time limited for proofs. We, therefore, conclude that that case is not inconsistent with the views we have advanced. .

We will now look to the evidence which plaintiffs presented to see if there is sufficient in it to submit the question of waiver to the jury. All that occurred before the expiration of the sixty days limited was that the local agent notified the company that there had been a loss. This was acted on by the company and was sufficient so far as notice of loss is concerned. Thereupon, within two or three weeks, an adjusting agent was upon the ground and had some unimportant conversation with plaintiffs about the fire, plaintiffs at the time not knowing he was an agent of defendant, though the local agent did know him. After this adjuster left, the local agent told plaintiffs that he was an adjuster and that everything would be settled up. The plaintiff stated: “I supposed him .being there and he being their adjuster, that was all that was necessary.” And also stated that the local agent did not think proofs would be necessary. Shortly after the time expired another adjusting agent of defendant called upon the local agent and sent him to plaintiffs to arrange an interview at the agent’s office. At this interview the only objection made was the value claimed by plaintiffs for the property destroyed. Shortly thereafter this adjusting agent wrote a letter to the local agent in which he states: “if Mr. Bowlin will authorize you to write me that he is willing to accept my offer you can say to him there will be no further trouble about it as I will fix up all the papers necessary and send to you for completion and as soon as returned executed send a draft for $500, payable to Bowlen and Donohue. Let me hear from you, etc.,

“Tours truly,

“James L. Applegate.”

From this testimony it can be fairly inferred (especially in the light of the importance attached to the action of the local agent in Loeb v. Ins. Co., supra), that the local agent was. authorized to speak for the adjusters. If the first adjuster responding to the notice of the fire had said to plaintiffs what the local agent said to him, it perhaps would not be disputed but that .it would have been evidence sufficient to establish a waiver of proofs of loss. Taking the fact that both adjusters are shown to have been at the place, evidently both communicating with the local agent and that one of them arranges for an interview with plaintiffs through him and afterwards authorizing him by letter to state to plaintiffs that in certain contingencies, there would be no further trouble, we are constrained to hold, being much influenced thereto by the Loeb case, that there is sufficient appearing to submit to the jury whether the local agent' had, in effect, authority from the company.

It is sufficient to further remark that the evidence as to the mortgage foreclosure proceedings .did not authorize taking the case from the jury.

The judgment will be reversed and cause remanded.

All concur.