126 Mo. App. 412 | Mo. Ct. App. | 1907
The suit is on a policy of insurance against loss or damage by fire. S. J. Rosenthal is the insured in the policy sned upon. After loss and prior to the institution of this suit, he assigned the policy to the plaintiff for value, and the suit is prosecuted by Mr. Cullen as the party in interest under this assignment. The view which the court entertains of the case will render it unnecessary to notice all of the many question presented in the briefs. Two of those questions only Avill be discussed. The record is extended and so much of the material facts as are relevant to those two questions only will be set out.
The insured, Rosenthal, OAvned a retail store at 2137 Franklin avenue in the city of St. Louis, in which was contained a stock of gents furnishings, shoes, etc., said to be of the value at the time of the fire, of from thirteen to fourteen thousand dollars. On April 1,1905, the defendant insurance company issued to the plaintiff the policy sued upon for one thousand- dollars covering on stock for one year from that date, whereby it undertook to indemnify him for any loss or damage by fire during the period mentioned. There were ten other policies of one thousand dollars each, covering on the same stock. On May 9, 1905, a loss occurred. Some of the goods were totally destroyed and others greatly damaged by fire and water thrown thereon by the fire department. Rosenthal employed Mr. Mangson, an independent adjuster, to look after his interest in settling the loss with the several companies involved. No settlement was reached, hpwever, inasmuch as the negotiations seem to have terminated unpleasantly. Rosenthal and his witnesses say that the defendant’s adjuster became unreasonable and arbitrarily demanded he agree to accept one hundred dollars for his goods totally destroyed, and if he would not agree to this, no further
The policy sued upon contains the usual clause requiring the insured to render proof of loss to the company within sixty days after the fire and also the usual stipulation with respect to arbitration in event the parties fail to agree upon the amount of loss sustained. Two of the principal defenses relied upon in the defendant’s answer, are the alleged failure of the insured to comply with either of these provisions of the policy. The proposition advanced and relied upon by the plaintiff to escape these stipulations in the policy and sustain the action, is that the company, by the acts and conduct of its adjuster, Mr. Crandall, waived both of these provisions. Therefore this matter and the facts relied upon as tending to prove such waiver, will be first considered. Notice of the loss having been duly received by the defendant, Mr. Crandall, its adjusting agent, and two other adjusters, Whittimore and Mattison, for other companies interested, as well as Mr. Mangson, the adjuster for Rosenthal, met at the store on the morning of May 19, to examine and negotiate with respect to a settlement. As said before, some of the goods were totally destroyed, others Avere damaged. The adjusters looked over the store, and Mr. Crandall, for defendant, inquired of Rosenthal what he estimated his loss to be on such goods as were totally destroyed; that is, such goods referred to in the evidence as being “entirely out of sight.” Rosenthal answered he could not say, but from what he saw and his clerks said, he thought the amount of the goods totally destroyed
2. As to the clause pertaining to arbitration and appraisal in case of disagreement, this is a reasonable provision of the policy which operates only after the parties have negotiated and failed to reach an agreement on the amount of the loss. Upon such a state of facts, it operates as a condition precedent to plaintiff’s right of recovery. [Stevens v. Norwich Ins. Co., 120 Mo. App. 88, 96 S. W. 684.] Now while the facts in proof show the parties failed to agree as to the amount of the loss on goods totally destroyed, it is made to appear as well that no effort was made in good faith by the adjusters to ascertain the amount of the loss. The company arbitrarily assumed the position through its adjuster, that unless the insured would agree in advance to accept one hundred dollars for totally destroyed goods, no effort would be made to ascertain and adjust the matter whatever, and the insured was given the alternative to either accept the terms so arbitrarily fixed or resort to suit at law on the policy. The purpose and object of the stipulation for arbitration is to the end that the parties may determine the amount of the loss without resort to the courts and the matter must be viewed with this thought in mind. Under the principle with respect to the waiver of proofs of loss above referred to, if it be apparent from the conduct of the adjuster that an arbitration would serve no end if had, then none was required; or in other words, by assuming a position which would render such act nugatory and of no effect, the company ought, under some of the authorities, be deemed to have waived its right thereto, for, as a general rule, the law does not require the doing of a useless act. The insured, by the arbitrary conduct of the com
3. The proof shows that Rosenthal assigned his policy to the plaintiff, Mr. Oullen, who is an attorney at law, in consideration of the services rendered and to- be rendered by him and other counsel in prosecuting the suit, and while Mr. Oullen is the proper party plaintiff to the action, Rosenthal still retains an interest in the insurance after compensating his counsel for their services. It appears Rosenthal and the adjuster, Crandall, had a meeting at the house of Mr. Loewenstein, a mutual friend, in August, after the assignment of the policy to Mr. Oullen, and a few days after suit was instituted thereon. The purpose of this meeting was to settle the loss if an agreement could be reached, and of course in this, Mr. Rosenthal was acting in his own behalf and as agent for the plaintiff, his assignee. After some discussion as to the amount and character of the loss, Crandall made some figures on a paper and offered to pay Rosenthal $2,074.98 in full on account of the policy in suit and the four other policies of one thousand dollars each in other companies, all of which Mr. Crandall represented, which offer was declined. This evidence was introduced by plaintiff on the theory that it tended to show an'admission of liability in consequence, of course, of its prior waiver of proofs of loss, arbitration, etc. It was objected to by the defendant as incompetent for the reason it was a proposition of compromise. The court admitted it, however, notwithstanding this objection, over the defendant’s exception. It seems clear the court erred in its ruling on this question. From a careful reading of the proof and consideration of the circumstances under which the proposition was made, there is no doubt that it was a proposition to compromise the claim of the plaintiff which he asserted was much in ex
Now in certain cases where, although proofs of loss are required to be furnished within a specified time and default thereabout has been made by the insured and the company nevertheless does some act thereafter recognizing liability on account of the loss, it may be and no doubt is competent and proper as tending to support the theory of waiver of such proofs, to show that the company did some act recognizing liability after the time for proofs had expired. [Ostrander on Insurance, sec. 352.] For in such cases, if no proofs were furnished within the time, the right of the insured to recover is foreclosed thereby unless the proofs were waived and by showing the fact that liability had been recognized by the company thereafter when none could exist except in event of waiver theretofore had, the reasonable inference is that in recognizing liability, the company admits or recognizes as well a waiver of the proofs. Or in other words, by recognizing liability under such circumstances, the company necessarily recognizes the only fact by which liability can exist, and that is, the fact that it