53 Mo. App. 98 | Mo. Ct. App. | 1893
— Plaintiff sued upon a policy of insurance covering his dwelling-house and other property, and alleged a destruction of the property so insured by fire
The only questions for review are those arising upon the giving and refusing instructions on the issue made in the 'pleadings as to the sufficiency in itself, and in point of time, of the proof of loss under the terms of the policy and the facts in the record. '
In the investigation of the issue to which we are thus restricted, it may be said in the outset that, unless an examination of the proof adduced shall disclose evidence entitling the plaintiff to have the question of waiver of the stipulations contained in the policy, both as to the contents of the proof of loss, and the time when it must be furnished, submitted to the jury, it will be our duty to reverse this case; since it is the uniform ruling of the supreme court as well as this court that the requirements of fire insurance policies as to the method of proof of loss, and the. time of the presentation thereof to the insurers, must be complied with, in the absence of waiver or estoppel, to enable the assured to recover for a loss covered by such poli
To determine the applicability of these principles of law, it is necessary to refer to the facts contained in the transcript. The policy - of insurance contained a clause to the effect, that' the claimant should give written notice forthwith of a loss thereunder, and within thirty days thereafter furnish proof of the circumstances of the loss and of the property destroyed, etc., with the annexed certificate thereto of the nearest magistrate, etc. Plaintiff read in evidence the following letter:
“Marshfield, Mo., April 23, 1890.
“German Insurance Co., Freeport, HI.
“Gents. — My dwelling and portion of household goods were destroyed by fire on the night of the twentieth of this month. Cause unknown. Myself and family were in Springfield. Please give the matter your attention. W. C. Haggard.” .
Plaintiff read in evidence proofs of loss, dated May 17, 1890. These were written out for the plaintiff by a notary public, and were signed and sworn to by the plaintiff, and the only objection to their introduction in evidence, made by defendant, was that the certificate of the magistrate was not annexed, as required by the
We think the foregoing evidence adduced by . plaintiff warranted the learned circuit judge in declining to give the instructions requested by defendant, all of which were offered on the theory that there was not sufficient evidence of waiver of the terms of the policy as to time of presentation and of the formalities of
The evidence for plaintiff tended to show that he sent his proofs of loss to the home office of the defendant several days before the expiration of the time (thirty days) limited in the policy, and the plaintiff never heard any objection to the sufficiency- of these proofs, until he received a letter from defendant’s state agent returning them on May 27, ten days after they had been forwarded by plaintiff; and that the time required for travel and transmission of mails between the postoffiee of the plaintiff and the defendant was only one day. When the proofs were thus returned, the plaintiff found on a slip attached to them a penciled statement, showing that they had been received at the home office of defendant and turned over to the state agents of the defendant company for adjustment. This detention of the proofs of loss and their delivery to the adjusting agents of defendant has been directly adjudicated to be evidence of waiver (Loeb v. Ins. Co., supra, 58), where it is said: “A waiver of the strict terms of the contract may be shown by the acts and conduct of the officers of the company, and receiving and holding the proofs, without objection made thereto, and turning them over to the adjuster are acts inconsistent with a design on the part of the company to stand on the fact that the proofs are out of time.” And although, as against the legal inference arising from such detention and delivery to the state agent, he thereafter inclosed the proofs of loss to the plaintiff, with a letter containing, among others, the objection that they were informal and presented out of time, such declaration on his part could not deprive the plaintiff of the benefit of the evidence of waiver inuring to him' by reason of. such detention of proofs and other acts of the defendant company. Erwin v.
These propositions were substantially embraced in instruction number 2, given by the court on behalf of' plaintiff, wherein the court also refers to the plaintiff’s offer of corrections as being made to defendant’s, “adjuster.” Under the meager facts in the record we would be disposed to hold that the court erred in assuming in this instruction that defendant’s state-agent was also its adjuster. But we are relieved from a consideration of this ground of objection by the fact, that the defendant, in its instruction number 6, refused by the court, requested the court to direct the jury “to-exclude from their consideration the conversation had between the plaintiff and the adjuster, Harrison, on June 17, 1890,” etc. The appellant, having tried his case below on the theory that Harrison was the adjuster of defendant, and having conceded that as a fact in its instructions offered, cannot now complain of’ the instruction given for plaintiff on that point. Whitmore v. Lodge, 100 Mo. 36, 47; Straat v. Hayward, 37 Mo. App. 590; LaFayette Building Ass’n v. Kleinhoffer, 40 Mo. App. 389, 393.
Our conclusion is that there was evidence in the record from which the jury were warranted in inferring a waiver by defendant of the informalities as to the-magistrate’s certificate. We have examined the instructions in this case, and do not find any errors therein of which the defendant can complain. The judgment herein is, therefore, affirmed. All the judges, concur.