84 Neb. 72 | Neb. | 1909
Plaintiff appeals from a judgment against him in a suit on a fire insurance policy. Defense that plaintiff did not make proof of loss as required by said contract. Replication that notice was given, that defendant waived such proof, and is estopped to make said defense.
The jury, in conformity with the court’s instruction, returned a verdict in favor of defendant. We must therefore give the evidence a liberal construction in plaintiff’s favor. The evidence discloses that the policy was issued through a Mr. Berry, defendant’s recording agent at Me-
Defendant argues that Berry did not have authority to waive any condition in the policy, and that his assurance to plaintiff that notice to said agent was sufficient, and that the loss would be paid, did not bind the company. In Continental Ins. Co. v. Lippold, 3 Neb. 391, we held that that part of an insurance policy relating to preliminary proofs and notice should be construed with great liberality. In Union Ins. Co. v. Barwick, 36 Neb. 223, Mr. Chief Justice Maxwell, speaking for the court, said: “A company may have notice from their own agent at a given point that a certain loss has occurred, and if it acts upon that information and sends an adjuster to estimate the amount of the same, etc., it is no doubt a waiver of proof.” It is argued with great learning, and many authorities are cited to sustain the proposition, that a local agent whose duties are confined to securing risks, issuing policies and collecting and remitting premiums is not clothed with power to waive a condition precedent to be complied with subsequent to a fire. There is respectable authority to the contrary. Nickell v. Phœnix Ins. Co., 144 Mo. 420, 46 S. W. 435. Plaintiff’s right to recover in this action does not depend entirely upon Berry’s authority, or lack of authority, but rather upon the conduct of defendant and the statements made by the adjuster. In Home Fire Ins. Co. v. Kuhlman, 58
We do not think it important for a solution of the instant case to inquire whether the adjuster’s authority was in writing. The scope of his employment was such that the assured would be justified in relying on his statements concerning a settlement of the loss. The evidence •discloses that the adjuster was acting generally in that line, and the court should have permitted plaintiff to prove that said agent settled with other policy holders whose property was destroyed by said fire, and who had not made proof of loss. Although the 60 days within which plaintiff might make proof of loss had not expired when the adjuster visited' Lebanon so that he did not waive any absolute and completed right to forfeit the policy, still plaintiff had a right to believe from what Avas said,
The judgment of the district court, therefore, is reversed and the cause remanded for further proceedings.
Beversed.