Siegle v. Phœnix Ins. Co.

• Decision Date: 25 April 1904
• Parties: SIEGLE et al. v. PH&#x152;NIX INS. CO. OF BROOKLYN.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

81 S.W. 637

107 Mo. App. 456

SIEGLE et al. v. PHŒNIX INS. CO. OF BROOKLYN.^*

Kansas City Court of Appeals. Missouri.

April 25, 1904.

INSURANCE — PROOFS OF LOSS — WAIVER — DENIAL OF LIABILITY — VALUED POLICY STATUTE — CONSTRUCTION — APPEAL — HARMLESS ERROR.

1. A statement of an insurance company's adjuster, made in the presence of assured, that it would be a long time before the latter would get a cent, constitutes a denial of liability and a waiver of proof of loss.

2. A depreciation of the property insured after the issuance of the policy does not avoid the policy, under Rev. St. 1899, § 7979, providing that no company shall take a risk on any property at a greater ratio than three-fourths of the value of the property insured, and, when taken, its value shall not be questioned in any proceeding, but the statute merely operates to make a valued policy.

3. In order to constitute error in the untimely admission of evidence, it must operate to the prejudice of the complaining party.

Appeal from Circuit Court, Ray County; J. W. Alexander, Judge.

Action by J. G. Siegle and another against the Phœnix Insurance Company of Brooklyn. From a judgment for plaintiffs, defendant appeals. Affirmed.

Fred H. Hudson and Fyke Bros., Snider & Richardson, for appellant. Conklin & Rea and S. J. Jones, for respondents.

BROADDUS, J.

Plaintiffs' action is upon a policy of fire insurance issued by defendant to plaintiffs on the 15th day of January, 1902, insuring them against loss by fire for a period of one year upon their stock of lumber at Hale, Mo., in the sum of $1,500. There was also other insurance on the stock and lumber sheds aggregating $10,000. On February 22d next after the date of the policy a fire occurred, which destroyed the entire property covered by all the aggregate insurance. A short time after the fire defendant's adjuster, Milton Welch, went to Hale to investigate the loss, and where he found that all of plaintiffs' books and inventories kept prior to the 1st day of December, 1901, had been destroyed by the fire; but there was an inventory of that date, which defendant claimed plaintiffs had nothing by which it could be verified, and nothing by which to show purchases prior or subsequent thereto. The defendant requested plaintiffs to furnish from wholesale dealers or other lumber merchants from whom they had purchased lumber for the previous 15 months duplicate invoices of lumber sold to them. Plaintiffs, in pursuance of this request, procured a large part of such invoices at some expense and trouble, and sent them to the said adjuster. It does not appear that the adjuster made any objections to said invoices, or required any additional information in that respect. The policy contained a requirement that proof of loss should be furnished defendant 60 days after the fire. The plaintiffs failed to furnish such proof within the time stipulated, but they claim that this provision of the policy in that respect was waived by the defendant's denying all liability thereunder. The evidence as to that was as follows: The adjuster said to a third party, in the presence of one of the plaintiffs, "Here is a man I have got a loss with, and it will be a damned long time before he gets a cent." This seems to us in effect a denial of liability, and, as such, a waiver of proof of loss. Dantel v. Ins. Co., 65 Mo. App. 44.

The defendant contends that instruction No. 3 given for plaintiffs was erroneous. It is as follows: "If the jury find for plaintiffs, their verdict will be for the amount of the policy sued on, to wit, fifteen hundred dollars, with interest thereon as above directed, provided they find that the total amount of insurance on all of the property destroyed by fire does not exceed three-fourths of the actual cash value thereof at the time of the loss. If you find that the total amount of insurance on all of the property does exceed three-fourths of the actual cash value thereof at the time of the fire, your verdict will be reduced by such part of such excess insurance as fifteen hundred dollars, the amount of the policy, is to ten thousand dollars, the total amount of the insurance, which proportion is three-twentieths." And defendant maintains that consequently the court erred also in refusing to give instruction No. 7 asked by it, and which is as follows: "The court instructs the jury that it is admitted that the total insurance on said property was $10,000. You are instructed that if said amount exceeded three-fourths of the actual cash market value of the property insured at the time of the...