29 Mo. App. 105 | Mo. Ct. App. | 1888
This is an action based upon a contract of insurance against loss by fire. Plaintiff recovered judgment below, and defendant prosecutes this appeal. The property insured was a one-story frame building, valued at one hundred dollars, and one American fruit evaporator contained therein, valued at three hundred dollars. The premium was paid and policy issued in October, 1885, and was to run for one year. The fire occurred on the fifteenth day of March, 1886. The policy contained the usual stipulations respecting the duty of the assured, in case of loss, to give immediate notice thereof to the insurer, and to furnish an account of the loss, etc.
The answer tendered the following specific defences: (1) that plaintiff failed to give notice and furnish the required proof of loss; (2) that the action was barred because the same was not brought within the period of six months after the loss, as provided in the policy.
The reply tendered the general issue as to the new matter set up in the answer, and further pleaded that defendant, by its conduct, etc., had waived the requirement as to furnishing proof of loss.
I. At the trial, as in the motion in arrest of judg
II. The contract required that the assured, in the case of loss by fire, should immediately give notice thereof to the company, and should also, within sixty days, furnish the proofs of loss to the company. • The notice was given, but the prescribed proof of loss was not furnished. To excuse this failure the plaintiff relies upon the claim that defendant, by its acts, conduct, and declarations, had waived this condition of the contract. To this, defendant objects (1) that no such issue is tendered by the pleadings. It was said in St. Louis Ins. Co. v. Kyle, 11 Mo. 278: “Nor do I perceive any objection to such evidence on the ground that the pleadings involve a different issue. It is merely evidence of performance. It is not a case of substitution of a new contract for an old one ; it is not an excuse for non-performance, by the prevention or discharge of the defendants ; but it is evidence of performance. The party for whose benefit the condition is inserted, is presumed to understand its import, and his acceptance is the strongest evidence that the act agreed to be done has been done according to contract.” Nap ton, J., fully considered this question in Russell v. Ins. Co., 55 Mo. 585, reaffirming the doctrine of the Kyle case, that, under the allegation of performance, proof of a waiver by defendant was admissible. The proof was certainly admissible when the plaintiff, in reply to the matter of defence set up in the answer, pleaded the fact of waiver, which was not a departure. (2) It is next objected to the admission of this proof) that, by the provisions of the contract of policy, no
III. The only remaining question of importance is, were the facts in evidence sufficient to warrant the court in submitting the issue of a waiver to the jury % A waiver is a mixed question of law and fact. Each case must necessarily depend much upon its own peculiar circumstances and surroundings. It is a question of intention, and a fact to be determined by the triers of fact. Ehrlich v. Ins Co., 88 Mo. 249; Drake v. Ins. Co., 3 Grant [Pa.] 325; Witherell v. Ins. Co., 49 Me. 200. ‘Where there is any evidence as to the authority of the agent to act in the premises, and of an actual waiver of condition on the part of the agent, it is for the jury; and though a waiver must be intentional and clearly proven, the sufficiency of the evidence relating thereto is for the jury.” Ins. Co. v. Schollenberger, 44 Pa. St. 259. Wood on Insurance (sec. 496) lays down the general rule to be, that: “When the insurer, knowing the facts, does that which is inconsistent with its inten,tion to insist upon a strict compliance with the conditions precedent of the contract, it is treated as having waived their performance, and the assured may recover without proving performance, and that, too, even though the policy provides that none of its conditions shall be waived except by written agreement. •* * * The production of proofs of loss, or defects therein,
What does the bill of exceptions disclose in this case? On receipt of the notice of the fire and the destruction of the property insured, the company at once replied that the matter would be attended to so soon as its adjusting agent, who was then absent, returned. This indicated to the assured that an adjuster would come upon the grounds to satisfy himself of the-loss, etc. So the plaintiff waited until May, nearly two months, when he again wrote the company. To this it replied as follows:
“ State Insurance Co., Des Moines, la. } ‘ ‘ Home Office, May 29,1886. [
“T. GL Okey, Humansville, Mo.,—
“Dear Sir: Your favor of the fifteenth inst. has-been received and noted. The papers in your case have been in the hands of our adjuster for a long time, but he has had so much to do that he has not been able to reach you. There is no intentional delay in this matter, we assure you, as we are as anxious to have the matter receive attention as any one.
“Yours truly,
“ J. C. Cummins, Sec’y.” _
IV. There was question made at the trial as to whether this action was brought within six months after the loss occurred, as required by the terms of the policy. It has not been pressed on this appeal; and we do not discover that it ■ has any basis of fact to rest upon.