203 P. 521 | Mont. | 1921
Lead Opinion
delivered the opinion of the court.
On the 15th of December, 1917, plaintiff procured an insurance policy of defendant covering creamery stock and equipment contained in a certain building at Corvallis, the policy taking effect at noon of that day. On that same evening a fire occurred, resulting in a total loss of the insured property. This action was commenced to recover the amount claimed to be due upon the policy. The case was tried before the court with a jury. Yerdiet was rendered in favor of plaintiff, and judgment entered accordingly. Motion for new trial was made and overruled. Defendant appeals from the judgment, and from the order overruling the motion.
Defendant insists that the judgment cannot be sustained because plaintiff did not furnish proof of loss in accordance with the terms of the policy, which was a condition precedent to the commencement of the action. The policy requires that
There was received in evidence as a proof of loss exhibit “A,” consisting of a detailed statement of the creamery equipment and stock on hand, with cost values, with certain deductions for depreciation. This exhibit was supplemented by the testimony of plaintiff showing that, after the notice of loss was given, and about thirty days thereafter, one Luke came to make an adjustment of the policy. Luke spent a portion of two days with plaintiff, looking over a plant at Hamilton, so that Luke could acquire some knowledge of the operation of a creamery in examining the site of the fire and in determining the amount of the loss. Plaintiff worked with him, and together they made up the list. As to some items which had been recently purchased, the cost price was taken from invoices in plaintiff’s possession; as to other items, inquiry was made of merchants handling similar merchandise, and in other instances reference was made to catalogue prices of
The question arises whether or not, under this statement of facts, the defendant waived the requirement of the policy as to the furnishing of proof of loss. There are three grounds upon which waiver may be claimed: (1) That defendant made adjustment of the loss and in connection therewith gave plaintiff to understand that nothing further would be required of
Upon the first ground, defendant insists that the adjustment
It is to be noted that, at the time when the listing of the property was completed, with detailed statements as to the value qf the articles, and Luke was about to leave the plaintiff, he said to plaintiff that it was not a question of how much or
Upon the second ground the great weight of authority is to
Upon the third ground it appears that, after the time for
Defendant offered an instruction embodying, among other
Error is also assigned upon the ruling of the court in ad-
plaintiff upon the theory of waiver, and received in evidence by the court over the objection of defendant. We cannot see that this acceptance of the check can be construed as any waiver of any of the provisions of the policy, for the reason that defendant does not deny the contract and its. obligations thereunder. Such being the case, it is entitled to hold the premium without waiving any of the conditions of the contract. We cannot see that the check was material for any purpose, but its admission was harmless error, as it could not be construed as in any way affecting the obligations of defendant in this case.
For the reasons herein given, the judgment and order overruling the motion for new trial are reversed, and the cause is remanded for further proceedings not inconsistent with the views herein expressed.
Reversed and remanded.
Rehearing
On Motion for Rehearing.
delivered the opinion of the court.
Plaintiff’s petition for rehearing is denied. In connection with this petition our attention has been called to certain phraseology of the opinion from which it is suggested that misinterpretation of its meaning may result. In order to remove any doubt as .to the meaning intended by the court in regard to these matters, we state that exhibit “A,” referred to in the opinion, was received in evidence as a proof of loss