Roberts v. Insurance Company of America

• Decision Date: 15 April 1902
• Citation: 72 S.W. 144,94 Mo. App. 142
• Parties: ROBERTS v. INSURANCE COMPANY OF AMERICA.
• Court: Missouri Court of Appeals

72 S.W. 144

94 Mo. App. 142

ROBERTS v. INSURANCE COMPANY OF AMERICA.

Court of Appeals at St. Louis, Missouri.

April 15, 1902.

INSURANCE—LOSS—VALUE OF PROPERTY—EXTENT OF LIABILITY—PROOFS OF LOSS—WAIVER—REVIVAL OF REQUIREMENT—ACTIONS—INSTRUCTIONS.

1. Where a policy provided that in case of loss the company should be liable only for three-fourths of the actual cash value of the property insured at the time of the loss, an instruction that, if the jury found the value of the different classes of the property to amount to the insurance thereon, they should find for plaintiff for the full amount of the insurance, was error.

2. Where, in an action on a policy, defendant claimed freedom from liability by reason of plaintiff's failure to furnish proofs of loss, and plaintiff claimed a waiver of such requirement, an instruction purporting to cover the whole case, and authorizing the recovery by plaintiff if the jury should find for plaintiff the facts hypothetically stated, which omitted the issue as to the proofs of loss, and whether or not proofs had been waived, was error.

3. Where proofs of loss were waived, the requirement of the policy that they should be furnished could not be revived by a subsequent demand of the company that they should be furnished.

Appeal from circuit court, Laclede county; L. B. Woodside, Judge.

Action by M. G. Roberts against the Insurance Company of America. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The petition is on a policy insuring the plaintiff against loss by fire of certain personal property described in the petition and in the policy. It is alleged that on the ____ day of January, 1900, while the policy was in force, all of the property insured was destroyed by fire, and was a total loss to plaintiff; that plaintiff complied with all the conditions of the policy, and had repeatedly demanded a settlement and payment of the loss, which had been refused by the defendant. The answer admitted the issuance of the policy. As a special defense, it is alleged in the answer that the policy provided that within 60 days after the fire, unless the time was extended in writing by the defendant, the plaintiff should furnish proofs of loss; that the defendant, in accordance with the law, had provided and furnished plaintiff with blank proofs of loss, but that the plaintiff had wholly failed and refused to furnish any proofs of loss as required by the policy. The answer denied all other allegations of the petition. The reply was— First, a general denial; second, a plea of waiver by defendant of the conditions and requirements set out in the answer in respect to proofs of loss.

For the plaintiff, the court gave the following instructions: "No. 1. The court instructs the jury that if they believe and find from the evidence that the defendant issued to the plaintiff the insurance policy sued on, by which the said insurance company insured the property destroyed by fire for a period of one year, and that while said policy was in full force and effect, and without any fault on the part of the plaintiff, the property was burned up and destroyed, they will find the issue for the plaintiff. And in arriving at the amount of plaintiff's damages the jury will ascertain the value of the property named as the first item of insurance, and, if the property so destroyed was at the time of the fire of the value of $120, they will find for the plaintiff the sum of $120 on the first item. And they will ascertain the value of the property so insured as the second item of insurance, and, if the property destroyed was of the value of $30 at the time of the fire, the jury will find for the plaintiff the sum of $30 on the second item. And they will ascertain the value of the property so insured under the...