Ritter v. Boston Underwriters' Ins. Co.

• Decision Date: 05 December 1887
• Citation: 28 Mo.App. 140
• Parties: RICHARD RITTER, Respondent, v. THE BOSTON UNDERWRITERS INSURANCE COMPANY, Garnishee of L. D. ALEXANDER, Appellant.
• Court: Kansas Court of Appeals

28 Mo.App. 140

RICHARD RITTER, Respondent, v. THE BOSTON UNDERWRITERS INSURANCE COMPANY, Garnishee of L. D. ALEXANDER, Appellant.

Court of Appeals of Missouri, Kansas City.

December 5, 1887

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Affirmed.

Statement of case by the court.

Plaintiff commenced suit by attachment against L. D. Alexander returnable to the May term of the circuit court, and caused the Boston Underwriters Insurance Company to be summoned as garnishee. The usual interrogatories were filed May 9, 1883. On July 30, 1883, the garnishee filed answer to the interrogatories, denying any indebtedness to Alexander. On May 26, 1885, plaintiff obtained final judgment against Alexander, and on the last-mentioned date the plaintiff filed a denial of the garnishee's answer. The denial alleged that there was due from the garnishee to Alexander, when the writ of garnishment was served, the sum of one thousand dollars by reason of a policy of fire insurance, issued by the garnishee to Alexander, and a loss thereunder. To the denial of the garnishee's answer the garnishee filed a reply. The policy of insurance contained the usual provisions as to proofs of loss to be given by the assured, and also a provision that no suit should be instituted on the policy unless begun within one year after the loss.

GEORGE W. BARNETT, for the appellant.

I. This action cannot be maintained for the reason that no suit was brought on the policy within twelve months next after the loss occurred. The court, therefore, erred in overruling the demurrer to the evidence, and in finding for the plaintiff also erred in overruling defendant's objection to the introduction of any evidence under the pleadings. Keim v. Ins. Co., 42 Mo. 38; Glass v. Walker, 66 Mo. 32; Ins. Co. v. Weiss Bros., 106 Penn. 20; 1 Rev. Stat., sects. 3485, 2533; Thomas v. Ins. Co., 108 Ill. 91; Demphy v. Riddle, 86 Ill. 22; Bank v. Dillon, 75 Mo. 380; Buel v. Transfer Co., 45 Mo. 562; Sweet v. Jeffries, 67 Mo. 420.

II. The plaintiff's denial of garnishee's answer to interrogatories takes the place of a petition, and even if plaintiff, Ritter, could maintain a suit on the policy in this case, his suit on the policy could not be deemed commenced until he filed his denial or petition, in which the policy is first declared on. Bank v. Dillon, 75 Mo. 380; 1 Rev. Stat., sects. 3485, 2533; Buel v. Transfer Co., 45 Mo. 562; Sweet v. Jeffries, 67 Mo. 420; Thomas v. Ins. Co., 108 Ill. 9.

III. The contract is with the assured and the continued validity of the policy is dependent upon the performance by him of the conditions embraced in it. 2 Wood on Ins., 1122, 1123; Martin v. Ins Co., 38 N.J.L. 140.

IV. Garnishment is not a new suit, but an incident or auxiliary of the main suit. Tinsley v. Savage, 51 Mo. 141.

V. The plaintiff cannot recover in this case because there were no proofs of loss, nor waiver of proofs, for, in order to constitute a waiver, there must be an element of estoppel, and this cannot exist unless the statements relied on to prove such estoppel were made to the assured or his agent, and by which assured was led to believe that such proofs were not required, but here the statements relied on to establish the waiver were made to a third party who had no interest in the policy. The court, therefore, erred in overruling the demurrer to the evidence and in finding for plaintiff. Ins. Co. v. Coffey, 61 Tex. 287; 2 Wood on Fire Ins., p. 943, note 2, chap. 13, sect. 439; Underwood v. Ins. Co., 57 N.Y. 500; Ayers v. Ins. Co., 17 Iowa 178; Deihl v. Ins. Co., 59 Pa.St. 452; Blossom v. Ins. Co., 64 N.Y. 162; 2 Wood on Fire Ins., sects. 445, 447, 454; Sims v. Ins. Co., 47 Mo. 54; Noonan v. Ins. Co., 21 Mo. 81; 2 Wood on Fire Ins., sect. 438; Ins. Co. v. Weiss Bros., 106 Pa.St. 20.

VI. Alexander having failed to comply with the conditions of his policy, in that he never made any proofs of loss, and never secured any adjustment of his loss, and never performed the conditions requisite to fix the insurance company's liability; such liability, if any, was contingent and subject to the conditions of the contract to be performed by him. There was, therefore, no such absolute debt as would be subject to garnishment. Heege v. Fruin, 18 Mo.App. 139; Lovejoy v. Ins. Co., 11 Ins. Law Jour. 186; Ranson v. Hays, 39 Mo. 455; Waples on Attach. & Garnish. 341, 378; Herne v. Keath, 63 Mo. 84; Scales v. Hotel, 37 Mo. 520; Weil v. Tyler, 38 Mo. 545; s. c., 43 Mo. 581; Lackland v. Garesché , 56 Mo. 267; Sheedy v. Bank, 62 Mo. 17.

VII. The garnishee cannot be made liable to plaintiff unless it would have been liable to Alexander, the defendant in the attachment suit. Faunkhauser v. Eveland, 3 Mo.App. 602; McPherson v. Railroad, 66 Mo. 103; Bank v. Staley, 9 Mo.App. 146; Weil v. Tyler, 38 Mo. 545; Caldwell v. Silver, 23 Mo.App. 417; Firebough v. Stove, 36 Mo. 111; Karnes v. Pritchard, 36 Mo. 135; Regan v. Railroad, 21 Mo. 30.

SHIRK & PORTIS, for the respondent.

I. The denial of garnishee's answer states a cause of action. It avers that defendant issued an insurance policy to Alexander; the destruction of the property insured, by fire; notice of loss by Alexander to the defendant; waiver of proofs of loss by defendant, by collecting such proof itself, to its own satisfaction; setting up as an excuse for not paying that Alexander had himself burned the church; fulfillment of all the conditions of the policy by Alexander; garnishment of defendant; non-payment of policy, and an averment that, at the date of garnishment, defendant was indebted to Alexander in the amount of said policy.

II. The evidence was sufficient to sustain the finding of the court sitting as a jury. (1) The waiver of proofs of loss was by conduct, as well as declarations. It was not necessary that Alexander should be present to see what defendant did, or hear its declarations made to Ritter and Stewart, that the loss to the amount of six hundred and fifty dollars would be paid; that the company would have it to pay, etc. (2) If the proofs thus waived had not been waived, Ritter, as attaching creditor, could have made them. Insurance Co. v. Adkins, 3 Bush (Ky.) 79. (3) The allegation is that Alexander gave the notice of loss, and thereupon the company waived the proofs by its conduct. There was evidence on this point, which satisfied the trial court. This waiver, of course, inured to the benefit of the attaching creditor. It made the company liable to Alexander and so to his attaching creditor. (4) The suit was brought in one year. The evidence showed that the loss occurred February 23, 1883. Plaintiff served the defendant with process of garnishment, March 5, 1883. Interrogatories were filed May 9, 1883. Defendant answered July 30, 1883. In its answer it acknowledges that it may become liable under this policy if proofs of loss are made. May 26, 1885, plaintiff files denial of this answer, alleging waiver of proofs of loss, and liability of defendant under the policy.

III. While the denial may be viewed as the petition in the garnishment proceedings, it is not the beginning of the suit. Garnishment under attachment is in effect a suit by defendant in the name of the plaintiff, against the garnishee, it is a suit. Drake on Attach. sect. 452. The language of Judge Wagner, in Tinsley v. Savage (50 Mo. 141), was used in reference to a garnishment under execution.

IV. (1) The facts alleged in the denial constitute a waiver of proofs of loss. Perry v. Insurance Co., 11 F. 482; Owens v. Insurance Co., 57 Barb. (N. Y.) 518; Insurance Co. v. Sheets, 26 Gratt. (Va.) 854; Findeisen v. Insurance Co., 10 Am. & Eng. Corp. Cases, 534; Mosley v. Insurance Co., 55 Vt. 142; Russell v. Insurance Co., 55 Mo. 585; Martin v. Insurance Co., 20 Pick. (Mass.) 389; McMasters v. Insurance Co., 25 Wend. (N. Y.) 379; McBride v. Insurance Co., 30 Wis. 562. (2) Waiver and estoppel are not the same. A waiver is effective whether the other party acted on it or not. Note to Findeisen case ( supra ). (3) If proof of loss be waived, the liability of the insurance company is fixed, and it is subject to garnishment, and the loss need not be adjusted. Lovejoy v. Insurance Co., 11 F. 62; Knox v. Insurance Co., 9 Conn. 430; Insurance Co. v. West, 8 Watts & Serg. (Pa) 350; Woodruff v. Bacon, 35 Conn. 105.

HALL J.

It is clear that, under certain circumstances, the loss covered by a policy of insurance is the subject of garnishment. Lovejoy v. Insurance Co., 11 Fed Rep. 62, and cases cited. The policy provided that " no suit shall be brought for the recovery of any claim under this policy unless such suit or action is commenced within twelve months next after the fire shall have occurred." The garnishee makes the point that, " the mere service upon this appellant of a summons of garnishment does not constitute a suit against it upon or under the insurance policy." In support of the point it is argued: " The garnishment is not a new suit, but an incident or auxiliary of the main suit, and a means of obtaining satisfaction of the debt against the defendant in the original suit by reaching defendant's creditors." Whether a garnishment be deemed a suit or not, wherever the loss under a policy of insurance is the subject of garnishment, it may, as a matter of course, be reached by that proceeding. The policy may provide, as a condition precedent to any recovery thereon that any suit based on the policy shall be brought in any reasonable time after the loss, but such provision does not and cannot deprive a creditor of the assured of the right to proceed by garnishment against the debt due on account of the loss. But the proceeding must be instituted in the time provided in the policy for the bringing of suits. The general statute of limitations applies...