Erwin v. The Springfield Fire & Marine Ins. Co.
| Decision Date | 10 January 1887 |
| Citation | 24 Mo.App. 145 |
| Parties | MARY E. ERWIN, Respondent, v. THE SPRINGFIELD FIRE & MARINE INSURANCE COMPANY, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Saline Circuit Court, HON. JOHN P. STROTHER, Judge.
Affirmed.
The case is stated in the opinion.
DAVIS & WINGFIELD, for the appellant.
I. The court erred in admitting in evidence the paper called " a proof of loss," because said paper does not comply with any of the requirements of the policy sued on. And, as is shown by the pleadings, it was abandoned by the plaintiff. It does not contain a particular account of the loss sustained, or of the property destroyed, such as is required by the terms of the prolicy, and is, therefore, insufficient. Welcome v Ins. Co., 2 Gray (Mass.) 480; Beatty v. Ins Co., 66 Pa.St. 9. It also fails to show that it was properly sworn to, or that it was sworn to before the magistrate nearest the fire.
II. The court erred in admitting in evidence the paper called the second " " proof of loss," for the reason that said proof of loss was not furnished to defendant within the time required by the terms of the policy, nor within a reasonable time after the fire, as is shown by the evidence.
III. The court erred in giving the instruction for plaintiff which is based upon the theory that there was evidence tending to prove that defendant waived its right to object to the time within which proofs of loss were furnished by plaintiff, when in fact there was no such evidence. No proof of loss was furnished within said time, or within any reasonable time after the fire. The fact that defendant in making objections to the last alleged proof of loss did not state that it was out of time, could not be held to be a waiver of time, because waiver is in the nature of estoppel; and there is no evidence tending to show that, by reason of any act of defendant, plaintiff was induced to or failed to do anything in relation to her claim. Underwood v. Ins. Co., 57 N.Y. 500; Wood on Fire Insurance, 702 et seq.; Blossom v. Ins. Co., 64 N.Y. 162.
IV. Under all the evidence in the case the verdict should have been for the defendant.
S. B. BURKS and BOYD & SEBREE, for the respondent.
I. The first proof of loss was properly admitted in evidence. It was the best statement that could be made under the circumstances. The bills and books of plaintiff were destroyed by the fire, and it was impossible to give full and accurate statements of the property, etc., without them. The proof of loss is a substantial compliance with the requirements of the policy, and this is sufficient. Wood on Insurance, 709; Willis v. Ins. Co., 79 N.C. 285. The proof of loss is made for the purpose of arriving at an adjustment. Phillips v. Ins. Co., 14 Mo. 220.
II. The second proof of loss was properly admitted in evidence. It was demanded by the defendant. The objections made to the first proof were invalid and unreasonable, but in order to satisfy defendant, and get the matter adjusted, the plaintiff made the second proof of loss. This last proof complied with the terms of the policy, except as to the time at which it was made. Defendant did not object to it because it was too late, but upon other unreasonable grounds; and the right to object that it was not made in time was waived. Palmer v. Ins. Co., 44 Wis. 201; Ins. Co. v. O'Connor, 29 Mich. 241; Williams v. Ins. Co., 9 Cent. Law Jour. 190; O'Connor v. Ins. Co., 31 Wis. 160; Russell v. Ins. Co., 55 Mo. 586.
III. There was no error in the instruction complained of. That part of it relative to time would not affect the merits of the case. If the second proof of loss was admissible it contains the law applicable to it. Taken in connection with the other instructions given by the court for both parties, the law of the case was presented to the jury fully and clearly.
IV. Defendant refused to pay the loss on the ground that there was something wrong about the fire. This was a waiver of all proof of loss. McBride v. Ins. Co., 30 Wis. 562.
V. There was no error of the trial court affecting the merits of the action, and the judgment is manifestly for the right party. In such case this court will not reverse the judgment, and another trial could not work a different result. Sect. 3775, Rev. Stat.; Hunter v. Miller, 36 Mo. 143; Orth v. Dorschlein, 32 Mo. 366.
This is an action on a policy of insurance covering a stock of millinery goods and some fixtures necessary to said stock. The plaintiff prevailed below and defendant appeals.
The policy contained, among other conditions, the following:
" Persons sustaining loss or damage by fire shall forthwith give notice of said loss, in writing, to the company, and, as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interests therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof, were used at the time of the loss, when and how the fire originated; and shall also produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the assured), stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured, to the amount which such magistrate or notary public shall certify."
The fire occurred on July 10, 1883, and plaintiff, on July 23, 1883, sent to the defendant a proof of loss, purporting to render a particular account of such loss, as required by the conditions above set out. This proof was offered in evidence and was admitted over the following objections of defendant:
1. Because said paper does not specify the policy under which the claim is made.
2. It does not contain a copy of the written part of the policy under which the claim is made.
3. It does not state the items nor give as particular an account of the loss as the nature of the case will admit, or as the company has the right to require under the terms and conditions of the policy read in evidence.
4. It does not state to whom the specific property belonged at the time of the fire, nor the interest of the insured therein.
5. It does not state whether any, and if any, what other insurance had been made on the same property, nor give copies of written portion of all policies, if any, concerning the same property.
6. It does not specify the time of the fire by which the property insured was damaged or destroyed.
7. It does not give or state the actual cash value of each specific subject of insurance at the time of the fire, nor does it give or state the actual loss, or damage, for which the claim is made in the aggregate, under each specific subject of insurance, nor does it state the amount of loss or damage claimed from such company under each specific subject of insurance.
8. The certificate of the magistrate attached to said document is incomplete, in that it fails to state that he is or was the nearest magistrate to the place of the fire, and is not related to the assured nor interested in the claim.
The first and second of these objections were properly overruled, as the matter specified in such objections do not appear to be required by the conditions of the policy. Nor do they appear to enter into any statement of account of loss.
The third objection depends upon the facts and circumstances of each particular case. It may be the account rendered was as particular as possible under the...
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