65 Miss. 301 | Miss. | 1887
delivered the opinion of the Court.
It was decided by the Supreme Court of Michigan, in Westchester Fire Ins. Co. v. Earle, 33 Mich., 143, that “there can be no more force in an agreement in writing not to agree by parol than in a parol agreement not to agree in writing. Every such agreement is ended by the new one which contradicts it.”
In view of this interpretation by-the courts of such a condition in a policy, it must be supposed to have been inserted with the understanding that it did not apply to what was required of the insured after a loss had occurred, and did not prevent the claim of a waiver of proof of loss by the acts of the agent of the company.
Was there in this case evidence of a waiver sufficient to be submitted to the jury, and to sustain the finding that there was? If the court can affirm confidently that the insured should not, as a reasonable person, have been misled, it should not be left to the jury, but should be decided by the court. If this cannot be affirmed, either because of dispute as to what occurred, or doubt as to its just influence on the insured, it should be submitted to the jury under proper instruction. Where it appears that the insured was not misled, all idea of waiver is excluded. That the insured claims to have been misled signifies little, and is not the criterion by which to determine the question, which is: Was what occurred, and is relied on as a waiver,sufficient to mislead the “ average man " into the belief that he was relieved from the obligation to do more than he did ?
McPike v. Western Ass. Co., 61 Miss., 37.
We reaffirm our announcement made in Insurance Company v. Sorsby, 60 Miss., 302, that “ the company is not to be prejudiced in its defence because its agent promptly went to the scene of the fire, and pursued every allowable method of investigation of the loss, and tried ineffectually to come to an understanding with the insured. This would be to punish for an effort to perform duty.”
Investigation into the circumstances of a loss, and an effort to agree with the insured as to the amount of his loss, and an offer to pay a sum less than the amount claimed will not constitute a waiver. There must be more than this; and where this alone appears, the jury should be told to find for the insurer. Waiver which rests upon the idea of estoppel cannot be predicated of mere performance of duty or exercise of right, or offer of compromise by the insurer; and this view should be firmly maintained by the courts.
If the claim of a waiver in this case rested alone on what occurred when Gillaspie, the agent, was in Hazlehurst soon after the fire, it would be manifest that the issue should be decided for the insurer; but the testimony of Gillaspie shows that he made several visits to Hazlehurst, “ to try to settle the matter
Affirmed.