Slater v. Williamsburg City Fire Ins.

| W. Va. | Oct 18, 1910

Lead Opinion

POEEENBARGER, JUDGE :

In an action, upon a fire insurance policy, against the Wil-liamsburg City Fire Insurance Company, D. F. Slater recovered a judgment for $1,000.00, in the circuit court of Mingo county. The defendant relied chiefly upon failure of the plaintiff to furbish a proof of loss. None was furnished within the time specified in the policy, nor at any time before the action was commenced. Denial of liability, on other grounds, by an adjuster, is relied upon by the plaintiff as a waiver of fulfillment of this condition. There was a demurrer to the plaintiffs evh dence and a conditional verdict, on which the court rendered judgment, after overruling the demurrer.

If the adjuster had no power or authority to waive this condition of the policy and it was not waived, no right of action had accrued, for performance thereof was made a condition precedent to a right of action, by the terms of the policy. There is no evidence or claim of waiver by any other representative of the company, nor by the company otherwise than by the acts and conduct of the adjuster. Under the policy sued on, no agent could waive any of its promissory warranties. It is a standard policy, containing a clause limiting the authority of the officers and agents of the company, such as that found in the policy sued on in Morris v. Duchess Ins. Co., 68 S.E. 22" court="W. Va." date_filed="1910-04-26" href="https://app.midpage.ai/document/morris-v-dutchess-insurance-9042370?utm_source=webapp" opinion_id="9042370">68 S. E. 22, in which it was held that an adjuster, 'without special authority so to do, cannot waive performance of this condition of the policy by denial of the company’s liability or otherwise. See also Cooley’s Briefs L. Ins., Yol. 3, p. 2497. This conclusion renders it unnecessary to inquire whether the conduct, of the adjuster would have constituted a waiver, if he had had authority to waive conditions.

As no right of action on the policy has accrued, there is no occasion to consider the other defenses and controversies,- disclosed by the record.

It results from these conclusions, that the judgment must be reversed, the demurrer to the evidence sustained and judgment rendered for the defendant.

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Rehearing

OAT PETITION TO RE-HEAR.

The argument accompanying the petition to re-hear discloses considerable authority against the conclusion here stated, based upon the theory of limitation of the non-waiver clause to the life of the policy antedating the loss. They say this clause is inapplicable after the loss occurs, since the policy has run its course and is no longer operative in the sense of protecting property, and it only remains to agree upon the amount of the loss and pay it. This is a plausible theory, but we find no warrant in the terms of the policy for its adoption. The non-waiver clause is broad, withholding from agents power to waive “any provisions or condition” of the policy’ otherwise than in a prescribed manner. We see no room in this clause for any exception. We have re-examinecl the evidence as to the authority of the adjuster and find nothing to sustain the claim of general authority in him. Though he says he was sent to the scene of the fire to adjust the loss and that no other person had had anything to do with the matter or authority to have anything to do with it, these facts do not make, out a general agency in hifn. The language means only that the adjustment, had not been delegated to any other person. Adjustment does not include liability and paymtent. These questions need not be committed to agents in the field. Authority in an adjuster to deal with them must rest upon more than mere surmise, suspicion or slight inference.

• Reversed and Rendered.