Probst v. Insurance Co. of North America

| Mo. Ct. App. | Jan 20, 1896

Ellison, J.

This action is based on a policy of insurance taken out by plaintiff on his general stock of merchandise. The plaintiff recovered in the trial court.

Plaintiff furnished proofs of loss which were objected to by defendant in a letter setting forth the objections, relating mainly to a lack of proper invoices, bills, etc. This letter was dated April 16, 1894, and at the close stated the following:

“Kindly bear in mind that we are not willing to waive any of the conditions or requirements, or any of our rights or defenses thereunder, and that any and all communications that pass between us, or between your attorney and myself, must be considered only as an effort to bring about a compromise of our differences, for you failed to furnish us with the proof of loss required by our said policy, within sixty days next after said fireU

We regard this as a denial of all liability, and therefore, ordinarily, would dispense with proofs of loss; since, if liability is denied, there can be no necessity for preliminary proofs. This proposition is not disputed, but it is claimed by counsel for defendant that it amounted to no more than an inception of a waiver of proofs by defendant. That to be a waiver it must have been acted or relied on by plaintiff, to his prejudice; and that it was not acted on or relied on by plaintiff, from the fact that plaintiff proceeded to furnish corrected proofs, thus demonstrating that he did not rely upon the declaration quoted above as dispensing with further or more complete proofs. We may grant the force of this contention, and yet we consider that proofs were again dispensed with by a letter from defendant’s agent to plaintiff, dated May 26, in acknowledgment of receipt of the corrected proofs, objecting to them and closing with the statement, that: “I now beg to again reiterate all of the. objections set forth in my former letter to you, bearing date of April 16, 1894.” No further action was taken by plaintiff. Now, if we concede there was no waiver of proofs in the letter of April 16 on account of the plaintiff not having relied or acted upon the denial of liability, we find that denial is again-made on the twenty-sixth of May, and that thereafter plaintiff made no further effort. It may be stated in other words thus: On May 26 defendant denied all liability under the policy, and plaintiff furnished no proofs of loss. In such case there need be no proofs, the denial being a waiver. 2 May on Ins., sec. 469, and note 2. This has been repeatedly decided in this state. Weber v. Ins. Co., 35 Mo. App. 525; Mensing v. Ins. Co., 36 Mo. App. 602" court="Kan. Ct. App." date_filed="1889-05-20" href="https://app.midpage.ai/document/mensing-v-american-insurance-6616065?utm_source=webapp" opinion_id="6616065">36 Mo. App. 602. This rule applies to further or corrected proofs of loss, wherein defects are attempted to be corrected.

Nor do we consider that the intimation contained in the letter that defendant, while not liable, might yet entertain a proposition of compromise, changed the effect of the letter, or altered the consequences flowing therefrom. The denial of liability was complete, and the compromise was a matter which would depend alone upon the voluntary action of defendant, disconnected from any legal obligation.

In our opinion the judgment should be affirmed, and it is so ordered.

All concur.