94 Mo. App. 142 | Mo. Ct. App. | 1902
I. The court instructed and the jury found for plaintiff for the full amount of the insurance as fixed by the policy. Defendant’s contention is that the recovery should not have exceeded three-fourths of the actual cash value of the property insured and that its refused instruction number five should have been given. The policy contains a clause limiting the right of recovery to three-fourths of the cash value of the property insured, not to exceed the amount of the insurance, and defendant’s refused instruction should have been given as it correctly defined the measure of damages.
II. Instruction No. I, given for plaintiff, purports to cover the whole case and authorized a recovery by plaintiff if the jury should find the facts for plaintiff as hypothetically stated in the 'instruction. The instruction left out of view the question as to the proofs of loss or whether or not the proofs of loss were waived. Under the terms of the policy it was incumbent on the plaintiff to show affirmatively that he had furnished proofs of loss as required by the policy or that the furnishing of these proofs had been waived by the defendant. The proofs of loss furnished did not comply with the terms of the policy and it therefore became essential to plaintiff’s right of recovery that he should establish that proofs of loss were waived. This issue was raised by the pleadings and should have been submitted to the jury as it was a question of fact whether or not the proofs of loss had been waived. Loeb v. Ins. Co., 99 Mo. 50.
No instructions were given for the defendant. Instruction No. 3, given for plaintiff, authorized the jury to find tijat proofs of loss had been waived if they found certain facts to exist, but the instruction does not predicate the right to plaintiff to recover upon the fact that proofs of loss had been
The adjuster of a fire insurance company, as to the settlement of losses, is the representative of the company and his acts, within the scope of his authority, are the acts of the company. McCollum v. Ins. Co., 67 Mo. App. l. c. 69-75.
When once waived the requirement that proofs of loss should be furnished, is eliminated from the policy and could not be revived by a subsequent demand of the company on plaintiff to furnish proofs. Porter v. Ins. Co., 62 Mo. App. 520. If, therefore, it should be found that proofs of loss had been waived, then the furnishing of defective proofs, in an attempt to comply with the demand, can cut no figure in the case.
For the errors above noted the judgment is reversed and the cause remanded.