39 Mo. App. 198 | Mo. Ct. App. | 1890
delivered the opinion of the court.
This was an action upon a fire insurance policy. The plaintiff had a verdict and judgment, and the defendant appeals.
The questions presented for consideration will be taken up in the manner in which they are stated in the appellant’s printed argument.
I. The first assignment of error is that the court erred in permitting the plaintiff to prove a waiver of proofs of loss under his petition, which did not plead a waiver, but pleaded performance on his part of the conditions of the policy. This assignment of error is not well taken. It has been several times-decided in this
II. It is next assigned for error that there is no evidence upon which the question of waiver of proofs of loss could properly have been submitted to the jury. We do not take this view of the evidence. Mr. Whitecotton, the plaintiff ’ s attorney, testified that, in an interview with the defendant’s agent, which took place within thirty days after the fire, and consequently within the period stipulated in the policy for the furnishing of proofs of loss, the following conversation was had : “I went to my office after supper about eight o’clock, Mr. Gilchrist came there, and I directed his attention to the main business at once. Mr. Gilchrist discussed the manner in a kind of roundabout way, and I pressed him to know what he was going to do. He told me that he had business, I think it was out with Dr. Cole. I offered to send for Maddox (the plaintiff), and have him here the next day. He would not do that; and then I asked him, when he went over there, to come by, and I would go over to Mr. Maddox’s with him. Then he said, ‘ This matter has been spoken of in your presence ; ’ that it was best for it not to get out that Mr. Maddox had consulted an attorney. He said that there were bad reports out about ita and that it was a
There was evidence of a subsequent conversation between the adjuster of the defendant and the plaintiff, which is regarded by the plaintiff as evidence of a waiver of proofs of loss; but,' as this took place subsequently to the expiration of the thirty days named in the policy as the period within wLich proofs of loss
III. The defendant reqúested, and the court refused, the following instruction: “The court instructs the jury that, before they can find in this case that there has been a waiver of the terms of the policy requiring proofs of loss, they must believe from the evidence that defendant’s agent or adjuster did or said something that led plaintiff to believe and understand that such proofs would be of no avail if furnished, and that such agent or adjuster must have absolutely refused to pay such loss, and placed his refusal on some ground other than the failure to furnish proofs of loss, thus giving plaintiff to understand that payment would be refused, even though sufficient proofs were furnished; or must have distinctly recognized the company’s liability, and given the plaintiff to believe and understand that they were satisfied with the information they had, and the' loss would be settled without proofs, and the requirements of the policy with regard to proofs was dispensed with.” This instruction, it will be perceived, predicates .the waiver of proofs of loss upon two alternative hypotheses: (1) That of‘an absolute denial of liability to pay the loss. (2) That of a distinct recognition of the defendant’s liability, and a giving of the plaintiff to understand that the loss would be adjusted without proofs; thereby excluding the hypothesis that there may be a waiver of proofs of loss without either an
IV. But we cannot say the same of the following instruction which the court refused: “The court instructs the jury that the fact that the defendant’s adjuster visited the place and offered to settle the loss with plaintiff upon a certain basis, which was rejected, does not amount to a waiver of the conditions of the policy requiring proofs of loss.” That this instruction embraces a correct proposition of law is shown by the decision of the supreme court in the case of Cook v. Ins. Co., 70 Mo. 610. As the court, in the modification which it annexed to the defendant’s instruction number one, had told the jury that they might determine whether there had been,a waiver of proofs of loss, “by all the facts and circumstances of the case,” the defendant had a right to have the jury admonished that this fact and circumstance could not,be regarded by them as a waiver of proofs of loss.
V. The first instruction given by the court of its own motion contained two alternative predicates: (1) That the plaintiff had made and delivered to the defendant, by its agent, proofs of loss, within thirty days after the loss; or (2) that such proofs of loss had been waived. There was no evidence in the case on which the predicate that the plaintiff had made and delivered to the defendant proofs' of loss could have been based. It is error to give an instruction which states a hypothesis of fact in support of which there is ho evidence;
YI. In one of the instructions given by the court on the measure of damages, the jury was instructed, “that if they find for the plaintiff, their finding upon each article insured must be its actual cash market value, at the time of the loss, not to exceed the amount for which it was insured, with six per cent, interest.” This instruction is inadvertently drawn, in so far as it directs the attention of the jury to the value of each article insured, instead of directing their attention to the value of each article insured and lost. This inadvertence probably did not mislead the jury, but we refer to it to the end that it may not, upon another trial, recur.
The judgment must be reversed, and the cause remanded. It is so ordered.