67 Mo. App. 76 | Mo. Ct. App. | 1896
On June 12, 1891, defendant issued its policy of insurance for one year for $2,000 on a two-story brick building belonging to plaintiff. On June 10 another insurance corporation executed a policy of insurance for the same amount on the same property for one year. Defendant’s local agents, while acting as such, procured for plaintiff the second policy. The building was totally destroyed while covered by this insurance on the fifth of March, 1892. The present action is for the amount of the first policy. The defense is the failure to make proofs of loss within sixty days as prescribed in said policy, and overinsurance contrary to the provisions of the policy. The cause was submitted to the court without a jury. No declarations of law were asked by plaintiff. Defendant interposed a demurrer to the evidence, which was overruled, and judgment was rendered in favor of plaintiff for the amount of the policy and interest. Defendant appeals.
There is no merit in the defense of overinsurance. The fact is undisputed that the second policy was procured by plaintiff from the same agent who represented
The second error assigned relates to the question of waiver by defendant of the making of due proofs of loss as required in the policy in suit. These were required to be furnished within sixty days after loss, unless further time was granted by defendant, and were to include, in addition to a showing of the amount of loss and the ownership of the property, a statement under plaintiff’s oath giving his knowledge and belief as to the time and origin of the fire. No such proofs of loss were shown to have been made. Plaintiff claims that there was a waiver of this requirement by the acts and doings of one McMillen as defendant’s adjuster. As plaintiff failed to show by competent evidence that McMillen bore this relation to the defendant, this point need not be further noticed. McCollum v. North British and Mercantile Company, 65 Mo. App. 304.
Plaintiff further insists that there was no necessity for proofs of loss under the present statute governing insurance of real estate. R. S. 1889, secs. 5897, 5898. This has been so ruled in some jurisdictions, on the ground that a statute fixing the amount to be paid renders it useless to make proofs of loss. Insurance Company v. Doherty, 102 Pa. 568; Insurance Company v. Chase, 33 S. W. Rep. 602; Insurance Company v. Levy, 33 S. W. Rep. 992. If the only purpose of proofs of loss was to show value, these decisions could
In the case at bar no claim is made by defendant that plaintiff was not the owner in fee of the property destroyed, nor is it pretended that the burning was by design or that the loss was in any respect other than bona fide. Indeed the entire evidence shows that the loss was an honest one. In such a case it is obvious that the making of formal proofs of loss would have been of no practical benefit to defendant. On the subject of making proofs of loss plaintiff testified that he had a conversation with the agents of defendant who were authorized by it “to fix rates or premium, receive moneys, countersign, issue, and renew policies,” and that he was told by such agents, in substance, that
The radical distinction between the authority of the agents in the former and present case is that there-is nothing in this record showing any limitation of the apparent authority bestowed upon said agents by the terms of their commission as above quoted. That this language was sufficient to constitute them general agents-for making contracts of insurance for defendant cannot be doubted. German Ins. Co. v. Orr, 56 Ill. App. 639; Continental Ins. Co. v. Ruckman, 127 Ill. 372;, Pitney-Glen’s Falls Ins. Co., 65 N. Y. 6; Geo. Home Ins. Co. v. Kinnier’s Adm’x, 28 Grattan, 88; May on Insurance, section 126. It is held that agents so authorized, in the absence of any notice to the insured of a limi