123 Mo. App. 682 | Mo. Ct. App. | 1907
Action on a policy of accident insurance begun on the 26th day of March, 1904. Plaintiff
On the 19th of August, 1903, plaintiff, according to his evidence, was assaulted without cause or provocation by a tenant and so mishandled that the injuries he sustained totally disabled him for a period of twenty-six weeks. The facts necessary to the statement of a cause of action are sufficiently pleaded in the petition and were put in issue by the answer of defendant which, among others, contains the defense that “plaintiff has never complied with the terms and conditions of his said policy and has never served any written notice upon defendant as required by the terms and conditions of said policy.” Defendant’s evidence tends to show that the assault was provoked by wrongful conduct of plaintiff towards his tenant and further that the injuries sustained by plaintiff in the encounter were not so severe and disabling as he and his witnesses say they were. These issues were submitted to the jury in appropriate instructions and settled in favor of plaintiff.
■ The policy provides that, “Immediate written notice must be given the company at Baltimore, or its duly authorized, agent, of any accident or injury for which a claim is to be made, with full particulars thereof and full name and address of the assured.” It is argued by defendant that its request for a peremptory instruction should have been granted because of the failure of plaintiff to comply with this provision. Instead of giving an instruction of this character, the learned trial
The proof shows that the policy had been procured by plaintiff from an insurance broker who was not a commissioned agent of defendant, but solicited business on his own account and when a risk was obtained placed it with one of several companies with which he dealt. The day after the injury the wife of plaintiff, at his request, sent a written message to the broker informing him in substance that plaintiff had been injured and requesting him to call. The broker promptly complied with the request and on his visit to plaintiff was informed of the cause and nature of the injuries. The subject of the insurance was mentioned and it may be said that plaintiff indicated to the broker his purpose to claim the indemnity provided in the policy. Nothing was done by either plaintiff or the broker in the giving of written notice to defendant until the third 'day of October following when the broker mailed this letter to the general agent of defendant at Kansas City: “I beg to report an injury to Israel V. Myers on Aug. 19th. He was assaulted by his tenant. ■ At the time I thought perhaps he would not put in a claim, but it has turned out worse than was expected. He is insured under policy No. O, 15753, dated Feb’y 7-03.”
The general agent, who testified as a witness for defendant, admitted that on receipt of this letter he gave the broker a blank notice of injury for plaintiff’s use
We are satisfied that no error was committed in the holding that these facts constituted a waiver in law of compliance in the time prescribed with the provision in the policy regulating the giving of notice: and to clear the way for a discussion of the particular questions of law involved in the ruling, we will concede for argument, without so deciding, that the broker was not the agent of defendant and therefore the letter written to him by plaintiff’s Avife, even if formally sufficient, was not a notice to defendant for the reason that it was not delivered to an authorized agent of defendant; that the formal notice received by the general agent six weeks after the injury was not an immediate notice within a reasonable definition of that term, but Avas given after the expiration of the time fixed in the policy, and that plaintiff Avas not induced to fail to give the notice in time by any act of defendant. Where the policy requires the giving of immediate notice of the injury, such notice must be given within a reasonable time and compliance with the requirement must be treated as a condition precedent to the right of the assured to maintain an action on the policy. Without a showing of good cause therefor, the failure of the insured to give notice until six weeks after the injury, in law, constitutes a
During the currency of the period in which notice may be given, acts of the insurer in dealing with the insured which clearly- indicate an intention not to hold the latter to a strict performance of the condition,will operate as a waiver. When the insured, uninfluenced thereto by any act of the insurer amounting in law to a waiver, suffers the time to expire without giving the prescribed notice, his breach of the condition affords a cause for the- forfeiture of his rights under the policy, which the insurer has the option of enforcing or waiving. In such case a waiver of the forfeiture may result from the conduct of the insurer and it may be stated as a rule, that, where the insurer with knowledge that a cause of forfeiture exists so conducts himself towards the insured that the latter is justified in believing the right of forfeiture will not be invoked, and is led thereby into the expenditure of time or money in presenting his demand to the insurer, a waiver will be presumed. The insured has the right to rely on the implied assurance contained in such conduct and, after he has acted on it, the insurer will not be permitted to hark back and deny liability on the ground his prior actions show he had voluntarily abandoned the claim. [Dezell v. Insurance Co., 176 Mo. 253; Crenshaw v. Insurance Co., 63 Mo. App. 678; Bolan v. Fire Assn., 58 Mo. App. 225; Cohn v. Insurance Co., 62 Mo. App. 271.]
Ordinarily, a waiver to be implied from the conduct of the parties involves issues of fact which must go to the jury. Generally the existence of some of the elemental facts is a subject of controversy or else it must be inferred from other facts and circumstances in proof. Thus, in Crenshaw v. Insurance Co., 63 Mo. App. supra, the only fact in evidence .tending to show a waiver was
Objections are made ,to the rulings of the court in the admission of evidence. In the examination of plaintiff, his counsel, proceeding on the theory that the broker was the agent of defendant, was permitted over the objections of defendant, to disclose the substance of con
It appears that the tenant at the instigation of plaintiff was arrested and prosecuted in the criminal court on the charge of assault and finally was discharged. The court refused to permit defendant to introduce in evidence the record of these proceedings in the criminal court and this ruling is assigned as error. Defendant argues that plaintiff’s position as a prosecuting witness in the criminal action made him privy thereto and that the judgment therein rendered, in exculpating the tenant, necessarily adjudicated the . fact that plaintiff was not the victim of an unprovoked assault. The proceedings in the criminal action must be regarded as. res inter alios acta. In this country, the duty of prosecuting for public offenses is devolved upon a public officer chosen for the purpose instead of being left, as in England, to the voluntary action of the party injured. [Cooley oh Torts, star page 88.] Plaintiff was in no sense a party to that action. [Gray v. McDonald, 104 Mo. 303; Cottingham v. Weeks, 54 Ga. 275.] He had no right to direct the prosecution nor opportunity to
Complaint is made of a reproof administered by the learned trial judge to the tenant while the latter was on the stand as a witness for defendant, but no exception, was taken at the time and we cannot consider an objection of this character which for the first time is presented in the motion for a new trial.
Some other questions are raised which in our opinion are so clearly without merit that it is unnecessary to discuss them. The record is free from prejudicial error and accordingly the judgment is affirmed.