Hosmer Bros. v. St. Joseph Town Mutual Fire Insurance

80 Mo. App. 419 | Mo. Ct. App. | 1899

GILL, J.

This is a suit on. an insurance policy, and the sole question is whether or not the action was prematurely brought. The policy — after requiring the assured, within sixty days after the fire, to furnish a sworn statement to the company, informing it as to the time, origin and circumstances of the fire, the cash value of the property, etc., provides as follows: “The adjusted claim under this policy shall be due and payable sixty days after the full completion by the assured of all the requirements herein contained. And the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proofs of loss herein required have been received -by this company, including- an award by appraisers when appraisal has been required.”

This suit was commenced within less than sixty days after plaintiffs had furnished the proofs of loss. It is then contended that the action must fail under the clause of the policy above quoted. The evidence showed, however, that shortly after the fire, before the proofs were made, and at all times thereafter, defendant denied all liability on the policy, refused to ascertain or adjust the loss, and its officers stated to plaintiffs that the only way they “could ever get a settlement was at the end of a law suit.”

Scribed time of demaiTffiabmty! On these facts the clause before quoted has no application. Said provision was intended for cases where the company received the proofs and set about to ascertain and adjust the loss. It does not contemplate a case where the company denies all liability, declines the proofs and refuses to ascertain or adjust the loss. If it were so, then under the strict letter of the provision, the company would be allowed to postpone the claim of the assured and defeat the same entirely by mere non-action. In Phillips v. Ins. Co., 14 Mo. 220, the supreme court dealt with a similar clause -under similar facts. The policy there provided that “payment of loss should be made in sixty days after the loss shall have been ascertained and proved and the proof received at the office.” Judge Napton used this language: “It is obvious that this clause applies to cases of an adjustment by the officer and to no other. Where the company refuses to adjust, a literal compliance with the article would prove a bar to a suit at law.” And it was there decided that the suit would not fail though brought before the sixty days had expired.

Judgment affirmed.

All concur.