113 Mo. 606 | Mo. | 1893
Suit on a policy of insurance. Defendant insured plaintiffs, from noon on the twen
• The petition alleges that all the terms and conditions of the policy were complied with. The defense is bottomed on an alleged failure to comply with the conditions of the policy, which required “proof of loss” and also with another provision with reference to the appraisement of the amount of the loss or damage.
The policy contained the usual requirement, that the assured, in case of a fire, should give immediate notice and render a particular account of the loss, signed and sworn to. And also that the defendant company might examine the books of account and vouchers of the assured; make extracts from the same, and if required, that the assured should submit to one or more examinations, under oath, and sign same when reduced to writing; and until sixty days after the proofs, examinations and certificates should be rendered when an appraisal was required, the loss should not become payable.
The provision of the policy in reference to an appraisement is as follows:
“If differences of opinion arise between the-parties hereto as to the amount of loss or damage, that question shall be referred to two disinterested men, each party to select one (and in case of disagreement, they to select a third), who shall ascertain, estimate and appraise the loss or damage, and the award of any two in writing shall be binding upon the parties hereto as to the amount of such loss or damage, and each party shall pay one half the expense of reference. "When personal property is damaged, the assured shall put it in the best order possible, and make an inventory*613 thereof, naming the quality and cost of each article, and the amount claimed on each, and upon each article the damage shall be separately appraised in the manner above provided; detailed reports of the appraisers in writing, under oath, shall form a part of * the proofs hereby required. Any fraud or attempt at fraud or false swearing on the part of the assured shall cause a forfeiture of all claim under this policy.”
The case was tried before the court, sitting as a jury, who found for plaintiffs in the sum of $2,992.50. No instructions were asked by plaintiff. After filing the usual motion for new trial and its being overruled, the case was appealed.
The provision in the policy pleaded in the answer as to proof of loss constituted a warranty, a condition precedent, and plaintiffs could not recover on the policy for the loss sustained, unless the conditions were first complied with, or waived by the defendant, or it is estopped from denying that the proofs were furnished. Noonan v. Ins. Co., 21 Mo. 81; Erwin v. Ins. Co., 24 Mo. App. 145; Leigh v. Ins. Co., 37 Mo. App. 542; Johnson v. Ins. Co., 112 Mass. 49; O’Brien v. Ins. Co., 63 N. Y. 108; Ins. Co. v. Updegraff, 40 Pa. St. 311. There is no provision in the policy as to where the proofs of loss should be delivered or to whom. Defendant’s counsel contend that the defendant had no agent in Howard county to whom the proofs could have been delivered and that they were never delivered at the general office of defendant. The policy was countersigned by J. J. Elkin, agent, and was dated at Fayette, Missouri, on the twentieth day of August, 1889.
Plaintiff G-eorge McCullough testified in his examination in chief that he did make out the proofs of loss as provided for by the policy, and that he delivered them to Spotts & Elkin, agents of defendants, but that
“Q. At what date did yon make and deliver to Spotts 8c Elkin, at Eayette, Missouri, proof of loss by fire under your policy? A. I don’t know. I remember of signing a document for that purpose in the Davis Bank at Eayette, Missouri. Exact date not known.
■ “Q. Who filled out that blank which you say you signed and delivered to Spotts & Elkin? A. If Í remember correctly, Elkin filled it out.”
Elkin was, at the time of issuing the policy, the agent of defendant as shown by the indorsement on it, and as there was no evidence to show to the contrary, and that if his agency had ever in fact been revoked that it was brought to the knowledge of plaintiff, then the delivery to him was delivery to the appellant. Franklin v. Ins. Co., 42 Mo. 456; Moore, Assignee, v. Ins. Co., 56 Mo. 343; 2 Wood on Fire Insurance [2 Ed.] sec. 439, p. 936.
Plaintiff further stated that Elkin wrote to him that there would have to be papers made out before the loss could be adjusted; that the letter was destroyed; that he made application to the local agent for the purpose of filing proof of loss, and there were papers made out afterwards, considered to be proofs of loss, signed and delivered to the agent, and that he made no objections whatever thereto.
On the twentieth day of March, 1890, plaintiff, G-eorge T. McCullough, met in Payette W. C. Butter-field, the adjusting agent of the defendant, when he stated to plaintiff that he was not ready to settle the loss without having the property appraised. He made no objection to settling on the ground that the proofs •of loss had not been furnished. It was then that plaintiff entered into the agreement with Butterfield as the agent of defendant to have the property appraised. It
Not only this, but it is manifest that plaintiff in his testimony, when speaking of the agent of defendant, had reference all the time to Elkin, with whom the business from its inception had been transacted, and we cannot say that there was not sufficient evidence to justify the court in refusing the first instruction asked by defendant in the nature of a demurrer to the evidence. If Elkin was the agent of defendant, this evidence was admissible. While it is true that one person cannot make himself the agent of another by his bare statements that he is the agent, there was undisputed evidence in this case that Elkin was at the time of the issuing the policy defendant’s agent, and the presumption is that he continued to be such until the contrary was shown, and no evidence of that character was offered. Mechem on Agency, sec. 224. The conversations therefore that plaintiff had with him in regard to the proofs of loss and the adjustment of the loss were properly admitted in evidence.
The proofs of loss were never objected to by defendant’s agent to whom they were not only delivered, but made out on one of its blanks by him, and defendant cannot now be heard to say that they were not in proper form. Franklin v. Ins. Co., 42 Mo. 456; Sims v. Ins. Co., 47 Mo. 54; Hinchen v. Ins. Co., 50 N. Y. 657.
The objections by defendant to the admission of the statements and acts of Spotts were well taken and should have been sustained. There .was no evidence whatever that he was ever at any time the agent -of
Defendant’s counsel insists that proof of the waiver of the proofs of loss was inadmissible under the pleadings for the reason that it was not pleaded, and they cite a great many authorities, including adjudications of this court and elsewhere, to the effect that in cases of waiver for breaches of contract that the waiver should be pleaded. This is unquestionably the rule, even in this state, in regard to all kinds of actions except on policies of insurance, as the case at bar. It has been uniformly held by this court that under the allegations in the petition that all of the conditions of the policy had been complied with, proof of waiver is permissible, and. is proof of performance, within the meaning of the conditions of the policy. Ins. Co. v. Kyle, 11 Mo. 278; Russell v. Ins. Co., 55 Mo. 585; Okey v. Ins. Co., 29 Mo. App. 105; Travis v. Ins. Co.,
The case was tried by the court on the theory that the proofs of loss must have been furnished according to the terms of the policy, as is manifest from the declaration of law given at the request of defendant to the effect that although the court might believe that the loss was total, plaintiffs were nevertheless required to furnish the proofs of loss. The court, by its finding and judgment, evidently came to the conclusion that the proofs of loss had been furnished according to the provisions of the policy, and we cannot say that the finding and judgment are wholly unsupported by the evidence.
Taking the view of the case that we do, as herein expressed, it becomes unnecessary to pass upon the question as to whether the agreement to submit to appraisers the value of the property was a waiver of the proofs of loss or not, as it is a matter of no consequence, and that question will only be considered in determining the question as to whether or not the suit was prematurely instituted. The policy does not provide that the report of the appraisers shall be made a part of the proofs of loss, that clause only applying to personal property. The policy contains this further provision:
“If differences of opinion arise between the parties hereto as to the amount of loss or damage, that ■question shall be referred to two disinterested men, •each party to select one (and in case of disagreement, they to select a third), who shall ascertain, estimate ■and appraise the loss or damage, and the award of any two in writing shall be binding on the parties hereto as to the amount of such loss or damage, and each party .shall pay one half the expense of the reference.”
The answer.alleges and the proof shows that there
The granting or refusing a new. trial rests peculiarly within the discretion of the court, and unless it is manifest that it has abused its discretion, or that injustice has been done, its ruling will not be interfered with. Bank v. Armstrong, 92 Mo. 265; McKay v. Underwood, 47 Mo. 187; McDonough v. Nicholson, 46 Mo. 35; Eidmiller v. Krump, 61 Mo. 342.
The judgment was in excess of what the respondents were entitled to recover, but as they have entered a remittitur in this court for the excess, the judgment will be affirmed.