McCullough v. Phoenix Ins. Co.

• Citation: 21 S.W. 207,113 Mo. 606
• Parties: McCULLOUGH et al. v. PHOENIX INS. CO. OF HARTFORD.
• Decision Date: 31 January 1893
• Court: United States State Supreme Court of Missouri

21 S.W. 207

113 Mo. 606

McCULLOUGH et al. v. PHOENIX INS. CO. OF HARTFORD.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

INSURANCE — PROOFS OF LOSS — ACTIONS ON POLICIES — DAMAGES — APPEAL.

1. Where, in an action on a fire insurance policy, it appeared that plaintiffs submitted proofs of loss to one E., who, as agent of defendant, made out the policy sued on, and there was no evidence offered by defendant to support its claim that no proof had been made to any of its duly-authorized agents, the presumption is that E., having been its agent at the time the policy was made out, continued to be its agent, and a delivery of the proofs to E. was a delivery to defendant.

2. Where it appeared that the proofs submitted were not objected to by defendant's agent, and were taken down by him on one of defendant's blanks, defendant is precluded from afterwards asserting that they were not in proper form.

3. A judgment will not be reversed by reason of the admission of improper evidence if it appear that such evidence had no effect on the result of the case in which such judgment was rendered.

4. Where, in an action on an insurance policy, the petition alleges that all of the conditions of the policy have been complied with, proof of waiver by defendant of proofs of loss is admissible, and is proof of performance within the meaning of the policy.

5. In an action on an insurance policy defendant set up as a defense that the question as to the amount of the loss had been, according to the provisions of the policy, submitted to arbitration, and that plaintiffs had instituted suit before such appraisal was concluded. It appeared that defendant's appraiser refused to agree on an umpire, and nominated persons unknown to plaintiffs' appraiser, and living 200 miles distant from the place where the property was destroyed. It further appeared that his refusal to agree to persons nominated by plaintiffs' appraiser was without excuse, and his conduct was virtually a refusal to proceed with the appraisal. Held, that the fact that the appraisal had not been concluded was not a defense to the action.

6. The granting or refusal of a new trial is within the discretion of the trial court, and unless it clearly appear that it has abused its discretion, or that injustice has been done, its ruling will not be interfered with.

7. A judgment will not be reversed on appeal, because excessive, if the party in whose favor such judgment was rendered enter a remittitur for the excess in the appellate court.

Appeal from circuit court, Howard county; John A. Hockaday, Judge.

Action by George T. McCullough and others against the Phœnix Insurance Company of Hartford to recover on a fire insurance policy. From a judgment for plaintiffs, defendant appeals. Affirmed.

Campbell & Ryan, for appellant. A. J. Herndon and Draffen & Williams, for respondents.

BURGESS, J.

Suit on a policy of insurance. Defendant insured plaintiffs from noon on the 20th of August, 1889, to noon on the 20th of August, 1890, to the amount of $2,500, against loss or damage by fire to a dwelling house belonging to them in Howard county, Mo. The building was destroyed by fire on the 31st day of January, 1890. The petition alleges that all the terms and conditions of the policy were complied with. The defense is bottomed on an alleged failure to comply with the conditions of the policy which required "proof of loss," and also with another provision with reference to the appraisement of the amount of the loss or damage. The policy contained the usual requirement that the assured, in case of a fire, should give immediate notice, and render a particular account of the loss, signed and sworn to; and also that the defendant company might examine the books of account and vouchers of the assured, make extracts from the same, and, if required, that the assured should submit to one or more examinations under oath, and sign same when reduced to writing; and until 60 days after the proofs, examinations, and certificates should be rendered, when an appraisal was required the loss should not become payable. The provision of the policy in reference to an appraisement is as follows: "If differences of opinion arise between the parties hereto as to the amount of loss or damage, that question shall be referred to two disinterested men, each party to select one, (and, in case of disagreement, they to select a third,) who shall ascertain, estimate, and appraise the loss or damage; and the award of any two in writing shall be binding upon the parties hereto as to the amount of such loss or damage, and each party shall pay one half the expense of reference. When personal property is damaged, the assured shall put it in the best order possible, and make an inventory thereof, naming the quality and cost of each article, and the amount claimed on each, and upon each article the damage shall be separately appraised in the manner above provided. Detailed reports of the appraisers in writing, under oath, shall form a part of the proofs hereby required. Any fraud or attempt at fraud or false swearing on the part of the assured shall cause a forfeiture of all claim under this policy." The case was tried before the court sitting as a jury, who found for plaintiffs in the sum of $2,992.50. No instructions were asked by plaintiffs. After filing the usual motion for new trial, and its being overruled, the case was appealed.

The provision in the policy pleaded in the answer as to proof of loss constituted a warranty, — a condition precedent; and plaintiff could not recover on the policy for the loss sustained unless the conditions were first complied with or waived by defendant, or it is estopped from denying that the proofs were furnished. Noonan v. Insurance Co., 21 Mo. 81; Erwin v. Insurance Co., 24 Mo. App. 145; Leigh v. Insurance Co., 37 Mo. App. 542; Johnson v. Insurance Co., 112 Mass. 49; O'Brien v. Insurance Co., 63 N. Y. 108; Insurance Co. v. Updegraff, 40 Pa. St. 311. There is no provision in the policy as to where the proofs of loss should be delivered, or to whom. Defendant's counsel contend that the defendant had no agent in Howard county to whom the proofs could have been delivered, and that they were never delivered at the general office of defendant. The policy was countersigned by J. J. Elkin, agent, and was dated at Fayette, Mo., on the 20th day of August, 1889. Plaintiff George McCullough testified in his examination in chief that he did make out the proofs of loss, as provided for by the policy, and that he delivered them to Spotts & Elkin, agents of defendants, but that he did not know which one. On his cross-examination plaintiff was asked the following questions: "At what date did you make and deliver to Spotts and Elkin, at Fayette, Missouri, proof of loss by fire, under your policy? Answer. I don't know. I remember of signing a document for that purpose in the Davis Bank at Fayette, Missouri. Exact date not known. Question. Who filled out that blank which you say you signed and delivered to Spotts and Elkin? A. If I remember correctly, Elkin filled it out." Elkin was at the time of issuing the policy the agent of defendant, as shown by the indorsement on it; and, as there was no evidence to show to the contrary, and that, if his agency had ever in fact been revoked, it was brought to the knowledge of plaintiff, then the delivery to him was delivery to the appellant. Franklin v. Insurance Co., 42 Mo. 456; Moore v. Insurance Co., 56 Mo. 343; 2 Wood, Ins. (2d Ed.) § 439, p. 936. Plaintiff further stated that Elkin wrote to him that there would have to be papers...