28 Mo.App. 140 (Mo.App. 1887), Ritter v. Boston Underwriters' Ins. Co.

Citation:28 Mo.App. 140
Opinion Judge:HALL, J.
Party Name:RICHARD RITTER, Respondent, v. THE BOSTON UNDERWRITERS INSURANCE COMPANY, Garnishee of L. D. ALEXANDER, Appellant.
Attorney:GEORGE W. BARNETT, for the appellant. SHIRK & PORTIS, for the respondent.
Case Date:December 05, 1887
Court:Court of Appeals of Missouri
 
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Page 140

28 Mo.App. 140 (Mo.App. 1887)

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...

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