190 Mo. App. 592 | Mo. Ct. App. | 1915
This is an action upon a policy of fire insurance issued by defendant to plaintiff insuring a horse, wagon and set of harness against loss or damage by fire. The policy was issued on March 20, 1912, and on September 30, 1912, the property insured was totally destroyed by fire. The suit was instituted before a justice of the peace on October 22, 1912, and found its way to the circuit court where upon a trial de novo, before the court and a jury, there was a verdict
It is urged that the petition is, for certain reasons advanced, fatally defective and fails to state a cause of action. It is quite clear, however, that it is sufficient as a statement before a justice of the peace; and it is unnecessary to set it out or dwell upon the arguments thus advanced. The statement together with the policy of insurance filed therewith sufficed to apprise the defendant of the nature of the claim asserted against it, and was sufficiently specific and definite to operate as a bar to another action on the same demand.
The policy, among other things, provided that the loss should not become payable until “sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss,” therein required, had been received by the company, and that no action could be maintained on the policy until after full compliance by the insured with this and other requirements thereof.
No attempt was made to assert any defense upon the merits. The defendant filed no pleading, but the defense sought to be interposed was that the suit was prematurely instituted. There is much conflict in the evidence as to what took place at defendant’s office in the city of St. Louis, subsequent to the loss and prior to the institution of the action. It is unnecessary to rehearse the details of the testimony pro and con as to this. It appears that after making some effort to secure the payment of his claim plaintiff placed the matter in the hands of his attorney who called at defendant’s said office, notified defendant of the loss, and received forms for making proof of loss which were executed and forwarded to defendant’s main office in New York City. It appears that plaintiff’s counsel thereafter made frequent visits to defendant’s St. Louis office, prior to the institution of the suit. The testimony is highly conflicting as to what took place, but on behalf
It is not disputed that denial of liability by defendant would operate as a waiver of the provisions of the policy relied upon by defendant in support of its contention that the suit was prematurely instituted. The evidence in plaintiff’s behalf was ample to warrant the finding that defendant had denied liability on the policy, and had thus waived such clause therein. It was the province of the jury to resolve the conflict in the evidence on this score, and its verdict concludes the matter here.
Some argument ore terms was directed to an attack upon an instruction given by the court of its own motion, and brief reference thereto is made in appellant’s argument. But no assignment of error is made as to the giving of this instruction, nor is any point made in appellant’s “points and authorities,” and no authorities are cited in support of the argument. It is therefore unnecessary to discuss the matter further than to say that it does hot appear that the instructions, when viewed as a whole, could have misled the jury to defendant’s prejudice.
Other questions need not be discussed. We perceive no reversible error in the record. The judgment is clearly for the right party, and should be affirmed. It is so ordered.
