80 W. Va. 39 | W. Va. | 1917
Upon a policy of insurance against loss by fire, drawn to cover an office building for one year from August 25, 1914, plaintiff brought assumpsit, and, upon defendant’s demurrer to the evidence, recovered the judgment of which it complains. The fire that destroyed the property occurred at one o’clock on the morning of July 11, 1915. The grounds of defense are cancellation of the policy, failure to notify the company of the loss and to furnish proofs of loss.
The policy is the New York standard form, and reserves the right to cancel it by giving five days’ notice to the insured. No such notice was given. The only attempt to comply with that provision of the contract was a notice to the Welch Insurance Agency, a copartnership representing defendant in procuring and writing for it policies of insurance in McDowell county, to cancel all policies procured for it through the agency and then in force in that county, among them being the one now in suit. Of this direction it is not contended plaintiff had notice or knowledge from any source whatever. From the testimony it appears that in lieu of the policy issued by defendant, Blakely, the active agent of the Welch agency, substituted a policy of another company on
There is not more plausibility in the contention that plaintiff failed to cause information of the loss to be imparted to defendant. He promptly notified the Welch agency through Blakely, who visited Davy on July 12, saw what the fire
The only other defense is based upon the failure to present to the company proofs of loss, by writing under oath, in strict compliance with a condition of the policy therefor. Plaintiff did not furnish any formal proofs of loss.
The loss was total, the destruction complete. No question has arisen as to ownership or encumbrances, or as to the amount of the loss sustained. Formal proofs could not have made these facts more clear; and enough is proved to warrant the inference that defendant was advised as fully and completely of the existence of these facts as it would have been had formal proof thereof been furnished as required by the policy. The testimony renders certain that the Welch Insurance Agency was as to the transactions the agent of the defendant. Blakely, the active manager and secretary-treasurer of the firm, puts that question beyond dispute. The defendant recognized that agency as its representative, and through it procured many contracts of insurance in McDowell county. These contracts the agency had authority to solicit, to write and execute so'as to bind the company, collect and remit premiums, and cancel policies when directed by the insurer or required by the insured. For these purposes the' insurance companies represented by the agency supplied it with policies duly signed by them ready for delivery when countersigned by the agency. It was defendant’s general agent in the transaction of its business in that locality. In
Courts look with disfavor upon attempts by insurers to evade liability by reliance upon forfeiture, and such a defense will not-be permitted to defeat a Just cause of action if there be reasonable ground on which to predicate a waiver of the forfeiture asserted. Although preliminary proofs of loss are made a condition precedent to the right to recover on a policy of insurance, yet if what is said and done by the insurer, or by an authorized agent on his behalf, may reasonably induce the insured to believe that formal compliance is not required, and he is influenced thereby to rely in good faith thereon as a waiver, such conduct will operate to excuse non-compliance. Peninsular Land Co. v. Franklin Insurance Co., 35 W. Va. 666; Hartford Fire Insurance Co. v. Keating, 86 Md. 130; Kenton v. Insurance Co., 7 L. R. A. 81; Providence Insurance Co. v. Wolf, 168 Ind. 690. Mere silence on the part of the insurer will not constitute a waiver; but if he reasonably induces the assurred to believe proofs are not necessary or demanded, the delinquency will not defeat a recovery. In Hartford Fire Insurance Co. v. Keating, cited, it was held that if after a loss an agent of the insurer examines into the circumstances of the loss and the value of the property, and states that he will send a check for the amount of the policy, and the assured therefrom understands he will not be required to furnish proofs of loss as stipulated
By the policy sued on it is provided that “no officer, agent
Finding no error, we affirm the judgment.
Affirmed.