40 Mo. App. 276 | Mo. Ct. App. | 1890
This action is on a policy of insurance containing a provision that a proof of loss should be made in sixty days and that “ no suit or action of any kind against this company for the recovery of any claim under or by virtue of this policy shall be sustainable in any court of law or chancery, unless such suit
At the conclusion of plaintiff ’ s case the trial court gave an instruction in the nature of a demurrer to the testimony and plaintiff has appealed. The suit having been instituted more than six months after the loss occurred, we must hold, under former rulings of this court and the supreme court, that it cannot be maintained. Glass v. Walker, 66 Mo. 32; Bradley v. Ins. Co., 28 Mo. App. 7; Thompson v. Railroad, 22 Mo. App. 321. Notwithstanding there were sixty days after loss in which, proof of loss should be made and that the amount of the loss was not payable till sixty days after the loss should be ascertained in accordance with the terms and cbnditions of the policy, yet the provisions above quoted, requiring suit to be instituted within six months, means six months from the date of the loss and not from an ascertainment of the amount thereof.
II. By reference to the two agreements between plaintiff and W. H. EL. Frye concerning the stock of goods insured, it will appear quite conclusively that plaintiff’s interest or title was not absolute. That .Frye had an interest which-should have been disclosed. This, of itself, was sufficient to justify the demurrer to the testimony under the following provision of the policy: “2. If the interest in the property be a leasehold, rental, mortgagee’s or other undivided partnership interest, or- a building standing on leased ground, or
III. The policy contained the following provision : “ The assured shall, if required, submit to an examination on oath by the company’s adjusting agent and subscribe to such examination when reduced to writing, and until such examination is permitted the loss shall not be payable.” Plaintiff submitted to an examination under oath but refused to subscribe his name. He should have done so unless there was some good reason to the contrary. Phillips v. Ins. Co., 14 Mo. 220; 2 Wood Fire Ins., sec. 449, and note thereto. His excuse for not signing was that he wanted, to consult his attorney as to whether it would be proper for him to sign. We are of the opinion that plaintiff had the right to reasonable time in which to consult his attorney before signing the examination. In his situation it was but natural that he should exercise caution and that he should want to learn what legal bearing the examination would have. But this will not avail plaintiff, under the circumstances that have been developed by the testimony, as an excuse for failing to make proof of loss within the time specified. At the time the refusal occurred there was yet left more than half of the time limited, within which he could have consulted his attorney, signed his examination and made up his proof. But he never consulted his attorney during the currency of the time he should have made his proof, for on December 27, nearly ninety days after the fire, his attorney wrote that he would have plaintiff sign the statement unless it contained some “flagrant mistake”
Plaintiff testified that defendant’s agent was not pleased with his refusal to sign the examination and that he “ told me (him ) to take the policy and abide by it.” He further stated that he anticipated trouble with the company. That he hired a lawyer and did not rely upon the agent. There should be something in the conduct of the insurer in the nature of an estoppel in order to constitute a waiver of such conditions in the policy. Gale v. Ins. Co., 33 Mo. App. 664. It is apparent that plaintiff was not being deceived or misled by the conduct of the defendant’s agent. He was not lulled into a false security and thereby prevented from d oing that which, but for the conduct of the agent, he would have done. He testified, in effect, that he relied upon himself and his attorney, and that he was told that he must abide by the terms of his policy.
He does state that he was not told at that time that he must furnish his proof, but he was told to comply with the policy which required the proof. The judgment is affirmed.
