On June 16 and 17, 1915, the defendant United Firemen’s Insurance Company of Philadelphia issued to plaintiff two policies of fire insurance, one in the sum of $350 upon his dwelling-house, and one for one thousand dollars on the furniture therein. Thereafter, by a contract of reinsurance, the defendant British America Assurance Company entered into a contract whereby it assumed the obligations of said first-named company. Nearly two years thereafter, to wit, May 2, 1917, the house and contents were destroyed by fire, and in an action brought by plaintiff upon the policies, judgment • was rendered in his favor for one thousand dollars, from which defendants appeal.
Appellants base their position upon two clauses of the policy; one rеlating to the title of the insured, and the other to the furnishing by him of sworn proofs of loss within a certain time.
The policies contained a provision that “within sixty days after the commencement of the fire the insured shall render to the company at its main office in California named herein preliminary proof of loss consisting of а written statement signed and sworn to by him setting forth: (a) his knowledge and belief as to the origin of the fire; (b) the interest of the insured and of all others in the property.” This condition was not compliеd with, but the court found, in substance, that defendants, and each of them, had actual knowledge and notice of said loss and actual knowledge of the extent thereof, and that defendants and their agents, by reason of their conduct and statements to plaintiff, misled him as to the necessity of furnishing such proofs, and their acts, statements, and conduct constituted a waivеr of the performance by plaintiff of the condition of said policies as to the making of such proofs. These findings are likewise attacked upon the ground of insufficiency of the evidence to support them. The evidence bearing upon this issue shows that immediately after the fire plaintiff saw Mr. Poole, the agent through whom he had procured the insuranсe policies, and had a conversation with bim in regard to the giving of notice and making of proof, wherein Poole told him “the company had by law sixty days, and he said, ‘You will hear from thеm,’ ” and that Poole said he would attend to giving the notice; and in response to the question, “Did you rely upon him to inform the company?” answered, “I did; I relied upon him all the time.” Mr.
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Poole did notify the company of the loss, in response to which Mr. Cote, the company’s adjuster, appeared on the scene two or three days after the fire, and ascertaining thаt the result of the fire was a total loss of the property, drew a plan of the rooms in the house and told plaintiff to list the articles in each room, with the value thereof, and givе it to him or send it to the company, with which demand plaintiff, after making the inventory in the manner required by the adjuster, complied. Thereafter the adjuster met plaintiff while he was engaged in driving a delivery wagon and presented to him a document which, upon representation that it was necessary that he sign it in order “to get this thing straightened up, fire insurance straightened up,” he signed. Thereupon Mr. Cote left and plaintiff did not see him again. This paper which plaintiff signed was a stipulation to the effect that no step or measure taken and no act of thе company or its agents should be deemed a waiver upon the part of the company of any of the conditions of the policies, unless the same were waived in writing by the рresident of the company. This agreement has no bearing upon the question before us. It has no reference to representations, acts, or conduct of the comрany or its agents calculated to lead the insured into the belief that such proofs were not required; indeed, to so hold would be in effect to sustain what might be the very means of accomplishing an intentional fraud upon plaintiff. In Joyce on Insurance, volume 5, section 3354, it is said: “The general rule seems to be, however, that any act or series of acts upon the part of the insurer which tend to create a belief in the mind of the claimant under the policy that notice need not be given, or that proofs of loss will be unnecessary, will operate as a waiver, and release such claimant from a compliance with the provision.” And in Cooley’s Briefs on Insurance, volume 4, page 3526, it is said: “If the company.invеstigates the loss on its own account, and so conducts itself with relation thereto as to show a satisfaction with the knowledge thus obtained, or to induce reasonable belief in insurеd that it is so satisfied, and does not desire formal notice or proofs, it will amount to a waiver of such formalities.” To the same effect see
Aetna Ins. Co.
v.
Shryer et al.,
The judgment is affirmed.
Conrey, P. J., and James, J., concurred.
A petition tо have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 3, 1920.
All the Justices concurred, except Shaw, J., who was absent.