Branigan v. Jefferson Mutual Fire Ins. Co.
| Decision Date | 20 October 1903 |
| Citation | 76 S.W. 643,102 Mo.App. 70 |
| Parties | BRANIGAN, Appellant, v. JEFFERSON MUTUAL FIRE INSURANCE COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Wm. Zachritz, Judge.
This appeal came up from an order of the court below sustaining defendant's motion for a new trial on a ground equivalent to holding that plaintiff should have been nonsuited.
Plaintiff held a policy of insurance issued by defendant on a house in St. Louis, which was injured by fire while the policy was in force. A building contractor, named Lynds, acting for the insurance company, estimated the loss to be one hundred and sixty-three dollars, and there was testimony that he proposed to the company to repair the house for that sum. The company offered either to pay the amount of his estimate or have him make repairs which would restore the house as it was before the fire; but Branigan would not accept either offer, because he thought the loss was larger and that repairs of that cost would be incomplete. Two other builders, Fitzgibbon and McMahon, estimated the damage to be around three hundred and twenty-five dollars. As the parties were unable to agree what the loss was, they stipulated for an appraisement as provided by the policy and each appointed an appraiser, but no umpire could be selected; so the scheme was abandoned and the company wrote Branigan withdrawing from the stipulation before this action was commenced.
The circuit court found the issues for the plaintiff and assessed his damages at two hundred and fifty dollars, but, as stated set aside the verdict.
In passing on that ruling we will consider no propositions except those presented by counsel for the company, which are:
First. There was an indorsement on the policy that any loss that might happen should be payable to Eugene Gross, trustee, as his interest might appear, and the action should have been in Gross' name.
Second. No proofs of loss were furnished by the assured.
Third. The company complied with section 7971 of the Revised Statutes, and, therefore, plaintiff's recovery, if he is entitled to one, should have been limited to the amount tendered; namely, one hundred and sixty-three dollars.
Judgment reversed and cause remanded.
Thos H. Harlan for appellant.
(1) Admission by insurer of liability for the loss operates as waiver of all proof of said loss. Funk v. Ins. Co., 66 Mo.App. 513; Cohn v. Ins. Co., 62 Mo.App. 271; Landrum v. Ins. Co., 68 Mo.App. 339. (2) Entering into an arbitration agreement between insurer and insured looking toward settlement of the loss, likewise operates as waiver of all proof of said loss. Murphy v. Ins. Co., 70 Mo.App. 78. (3) Failure of insurer to furnish to insured, sustaining loss or damage by fire, such blank forms or statements and proofs of loss as such insurer may desire to be filled out, is expressly declared by statute in this State to operate as waiver of all proof of said loss. Secs. 7977, 7978, R. S. 1899, construed in Warren v. Bankers & Merchants Town Mutual Co., 72 Mo.App. 188; Meyer Bros. v. Ins. Co., 73 Mo.App. 166. (4) The party insured has the right, in this State, to elect between payment of money and making of repairs by insurer. (a) By express statute, in case of partial destruction or damage to property covered by insurance, it shall be the duty of the insurer to pay the insured for the damage in money or to repair the damaged property, at the option of the insured. Sec. 7971, R. S. 1899. (b) The parties to an insurance contract or policy are presumed to have contracted with reference to any statutes which may control the subject-matter of such policy, and such statutes enter into and become a part of the policy, any provisions therein to the contrary notwithstanding. Havens v. Ins. Co., 123 Mo. 403. (c) These sections of the statutes apply to mutual as well as to other kinds of insurance companies. Warren v. Ins. Co., 72 Mo.App. 188; Gibson v. Ins. Co., 82 Mo.App. 515.
Herman A. Haesler and Harry H. Haesler for respondents.
(1) Under and by terms of policy, appellant could not recover. Loss was not payable to him, but to Eugene J. Gross; therefore, it was error for the court to refuse the first instruction. (2) Appellant under the condition of policy had option under section 7971, Revised Statutes 1899, to take money offered, or he could let respondent proceed to repair. He could not refuse both, repair himself and sue for costs to him; and therefore the court erred in refusing respondent's first, second and fourth instructions. When he elected to and did repair, respondent had a right to drop all further proceedings and take it for granted he had at his option elected to take the $ 163.55, which respondent had told appellant it would cost them.
GOODE, J. (after stating the facts as above).
1. The action was well brought in the name of the assured. In some jurisdictions, including the Federal courts, it must be brought that way whether the loss is payable to a mortgagee or trustee. 4 Joyce, Insurance, sec., 3611; Friemansdorf v. Ins. Co., 1 F. 68. In this State the mortgagee may sue so long as the debt remains unpaid; but so may the mortgagor, who is regarded during that period as the trustee of an express trust. Anthony v. German Am. Ins. Co., 48 Mo.App. 65.
2. Proofs of loss were waived by the company; for its adjuster conferred with the insured about the loss without demanding proofs, and conceded the company's liability; a written agreement to arbitrate the amount of the damage was executed, and no blank proofs were furnished the plaintiff.
3. The serious defense is based on the...
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