21 S.W. 207 (Mo. 1893), McCullough v. The Phoenix Ins. Company

Citation:21 S.W. 207, 113 Mo. 606
Opinion Judge:Burgess, J.
Party Name:McCullough et al. v. The Phoenix Insurance Company, Appellant
Attorney:Campbell & Ryan for appellant. A. J. Herndon and Draffen & Williams for respondents.
Case Date:January 31, 1893
Court:Supreme Court of Missouri
 
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Page 207

21 S.W. 207 (Mo. 1893)

113 Mo. 606

McCullough et al.

v.

The Phoenix Insurance Company, Appellant

Supreme Court of Missouri, Second Division

January 31, 1893

Appeal from Howard Circuit Court.--Hon. John A. Hockaday, Judge.

Affirmed.

Campbell & Ryan for appellant.

(1) The provision of the policy pleaded in the answer respecting proofs of loss constituted in law a warranty, a condition precedent; a breach of which absolutely extinguished plaintiff's right to recover for any loss of property covered by the policy. Hence, proof by plaintiffs that they had complied with this condition and furnished defendant with such proof of loss was essential to their recovery in this case. Ins. Co. v. Kyle, 11 Mo. 278; Noonan v. Ins. Co., 21 Mo. 81; Sims v. Ins. Co., 47 Mo. 54; Erwin v. Ins. Co., 24 Mo.App. 145; Leigh v. Ins. Co., 37 Mo.App. 542; Hicks v. Ins. Co., 6 Mo.App. 254; Johnson v. Ins. Co., 112 Mass. 49; Dolliver v. Ins. Co., 131 Mass. 39; O'Brien v. Ins. Co., 63 N.Y. 108; Ins. Co. v. Updegraff, 40 Pa. St. 311; Wood on Fire Insurance [2 Ed.] p. 954; May on Insurance [3 Ed.] sec. 460; Gould v. Ins. Co., 21 Insurance Law Journal (Mich.), 328, 330; Burlington Co. v. Ross, 21 Insurance Law Journal (Kan.), 799-803-4. (2) There could be no proof that defendant had waived compliance by plaintiffs of the condition requiring proofs of loss as no such waiver was pleaded; the plaintiffs having alleged performance of this condition, both in the petition and reply. Hence the court below erred in admitting the agreement to appraise offered by the plaintiffs for the purpose of proving waiver, against the specific objection of defendant. Ehrlich v. Ins. Co., 103 Mo. 231; Lanitz v. King, 93 Mo. 513; Nichols v. Larkin, 79 Mo. 265; Bank v. Hatch, 78 Mo. 13; Mohney v. Reed, 40 Mo.App. 99; Ray v. Boeteler, 40 Mo.App. 213; Eiseman v. Ins. Co., 74 Iowa 11; Bliss on Code Pleading [2 Ed.] sec. 302, p. 446; Ins. Co. v. Johnson, 21 Insurance Law Journal (1892), 911. (3) First. Should this court hold that this evidence of waiver was admissible under the pleadings, then we submit that the agreement to appraise did not tend to show waiver of proofs of loss, and defendant's objection on that ground should have been sustained. 2 Wood on Fire Insurance [2 Ed.] pp. 944, 973, 978-9. Cook v. Ins. Co., 70 Mo. 610; Noonan v. Ins. Co., 21 Mo. 81; Maddox v. Ins. Co., 39 Mo.App. 198; Leigh v. Ins. Co., 37 Mo.App. 542; Hanna v. Ins. Co., 36 Mo.App. 538; Colonias v. Ins. Co., 3 Mo.App. 56; Engebretson v. Ins. Co., 58 Wis. 301; Blossom v. Ins. Co., 64 N.Y. 162; Pettingill v. Hinks, 9 Gray, 169; Williams v. Ins. Co., 19 Insurance Law Journal, 26. Second. The rule being that waiver only takes place when there has been such conduct on the part of the insurer as creates an estoppel, "it does not arise by implication alone, nor except from some conduct by one party which leads or justly may lead, in reliance upon it, another party to believe a certain cause of action or non-action on his part will fulfill all his obligations to the first party, so that to allow the first party to disappoint the expectation or belief founded upon and induced by his conduct would be a fraud." May on Insurance [3 Ed.] sec. 507. Third. Mere silence by the defendant with respect to demanding proofs of loss could not be a waiver. Ins. Co. v. Kyle, 11 Mo. 278; Mueller v. Ins. Co., 82 Pa. St. 399; Ins. Co. v. Oates, 18 Insurance Law Journal, 761. (4) The defendant's objections to plaintiff's testimony concerning Spotts & Elkin should have been sustained. There was no evidence given, direct or inferential, that they were defendant's agents. Their statements made in letters claimed by plaintiff to have been written to him by them (and subsequently destroyed), were incompetent--as "the declarations of one who assumes to act as the agent of another, are not admissible to establish the agency." Mitchum v. Dunlap, 98 Mo. 418; Peck v. Ritchie, 66 Mo. 114; Diel v. Railroad, 38 Mo.App. 454; Francis v. Edwards, 77 N.C. 271. The judgment is without evidence to support it, and, therefore, although the action is at law, should be reversed by this court on appeal. Avery v. Fitzgerald, 94 Mo. 207; Garrett v. Greenwell, 92 Mo. 120; State v. Hunt, 91 Mo. 490; Blackwell v. Adams, 28 Mo.App. 61.

A. J. Herndon and Draffen & Williams for respondents.

(1) The policy does not provide that the proofs should be delivered at the home office of the defendant or to any particular officer or agent. It was therefore sufficient for the plaintiffs to submit such proofs to the defendant's agents at Fayette. Moore v. Ins. Co., 56 Mo. 343; 2 Wood on Fire Insurance [2 Ed.] sec. 439, p. 936; Scheiderer v. Ins. Co., 58 Wis. 13; Franklin v. Ins. Co., 42 Mo. 456. (2) There was evidence to show that Spotts & Elkin to whom plaintiffs' testimony showed that proofs of loss were delivered, were defendant's agents. The policy sued on was countersigned by Elkin as defendant's agent. "Notice of loss to the agent of the insurer is, in the absence of knowledge on the part of the assured of the revocation of his agency, notice to the insurer." 2 Wood on Fire Insurance, [2 Ed.] p. 929, note 1. (3) The...

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