Hooker v. Phoenix Insurance, 69 Mo. App. 141

Hooker v. Phoenix Insurance

69 Mo. App. 141 | Mo. Ct. App. | 1897

Gill, J.

This is an action on an insurance policy covering the contents of a livery stable at Lebanon, Missouri, and which was destroyed by fire in October, 1894. The sole defense relied on at the trial was the alleged failure of the plaintiff to have the property appraised after the fire, it being alleged and shown that the parties failed to agree on the extent of the loss.

Plaintiff had a verdict and judgment for the full amount named in the policy and defendant appealed.

Insurance: arbitration: evidence. There appears no substantial reason for disturbing the judgment. The undisputed evidence establishes a meritorious case for the plaintiff. It shows that during the life of the policy the property insured was destroyed by an accidental fire; that its value was . considerably m excess of $1,400, the amount named in the policy, and that due and proper notice and proofs of loss were served on the defendant. The only defense was that the company’s adjuster and plaintiff, at a meeting held by them two weeks after the fire, disagreed as to the extent of the *144loss, and that plaintiff brought his suit without having the loss appraised by arbitrators as required by the policy, which, in a similar policy, was held by this court to be a condition precedent to a right of recovery. See Murphy and McNees cases, 61 Mo. App. 323, 335.

There was, however, in this ease evidence tending to prove performance, or at least tender of performance, of this condition as to arbitration. The testimony of plaintiff was to the effect that at the time of the futile negotiations between him and the company’s adjuster, he (plaintiff) offered to arbitrate the loss; that the adjuster left, promising to investigate the matter of prices of vehicles, etc., such as were destroyed, and then write the plaintiff, but never did so. In other words, the defendant, according to the plaintiff’s evidence, was put in the attitude of refusing an arbitration when offered by the plaintiff. The defendant is not, therefore, in a condition to complain of the absence of an appraisement. By the conduct of its officer or agent that provision of the policy was waived.

-: INSTRUCTION: COMPLIANCE: waiver. Neither do we think there was reversible error in giving plaintiff’s instruction which, in effect, told the jury that if the loss occurred, etc., and that plaintiff, on his part, complied with the terms of the policy, then the jury should find for the plaintiff the value of the property insured and destroyed, but not to exceed the sum named in the policy. Defendant’s counsel complain of the uSe of the above italicized language. It is contended that plaintiff, as to the arbitration, relied on a waiver and that there was no evidence of performance, and that therefore the instruction erroneously submitted an issue of performance of the conditions of the policy. But, as already stated, the evidence in plaintiff’s behalf tended to show performance, or such acts as would excuse it; that is, that he did ask an arbitration which was in effect *145declined. Such “proof of waiver is proof of performance within the meaning of the policy.” McCullough v. Ins. Co., 113 Mo. 606-616, and eases cited.

The judgment will be affirmed.

All concur.