Ames v. Minneapolis Fire & Marine Ins. Co.

• Decision Date: 04 December 1923
• Docket Number: 5322.
• Citation: 220 P. 747,69 Mont. 177
• Parties: AMES v. MINNEAPOLIS FIRE & MARINE INS. CO.
• Court: Montana Supreme Court

220 P. 747

69 Mont. 177

AMES v. MINNEAPOLIS FIRE & MARINE INS. CO.

No. 5322.

Supreme Court of Montana

December 4, 1923

Appeal from District Court, Musselshell County; Geo. A. Horkan Judge.

Action by Bert Ames against the Minneapolis Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Snyder Gale & Richards, of Minneapolis, Minn., and Thomas J Mathews, of Roundup, for appellant.

Jeffries & McNaught, of Roundup, for respondent.

HOLLOWAY J.

Plaintiff instituted this action to recover upon a policy of hail insurance, he prevailed in the lower court, and defendant appealed.

The policy is a standard form, which required notice of loss proof of loss, and contained the following provision, and other provisions of like import:

"No officer, agent, or other representative of this company shall have power to waive any provision of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions or conditions no officer, agent, or representative shall have power or be deemed or held to have waived such provisions or conditions until such waiver, if any, shall be written upon or attached hereto."

There is not any conflict in the evidence. Plaintiff gave the required notice of loss but did not furnish proof of loss. He was permitted to recover upon the theory that the policy provision for proof of loss had been waived by the insurance company. Three questions only are argued in appellant's brief:

1. It is urged that the complaint does not disclose "that the insured crop was damaged in any specific sum." It is alleged:

That plaintiff and defendant entered into the contract by the terms of which defendant insured plaintiff's crop of wheat, growing on 160 acres of land, particularly described, against loss or damage by hail to the extent of $12 per acre, or a total of $1,920; "that on the 18th day of June, A. D. 1920, the plaintiff suffered a partial loss of the said crop hereinbefore described and located on the lands set forth herein, being the wheat described in said policy of insurance hereinbefore set forth and insured by the defendant herein, * * * which said loss was occasioned by hail, and which said hail destroyed 50 per cent. of the said wheat hereinbefore described, being the wheat insured by defendant against loss by hail."

It is then alleged:

"That the said hail hereinbefore mentioned which caused the said loss to the said crop of wheat damaged this plaintiff in the sum of nine hundred and sixty dollars ($960)."

These recitals demonstrate that this contention is without merit.

2. The acts and declarations upon which plaintiff relied as constituting a waiver of the provision requiring proof of loss were principally the acts and declarations of one Slater, who, plaintiff alleges, was the representative of the insurance company and the adjuster sent by the company to adjust this loss. The general denial clause contained in the answer raised an issue as to Slater's representative capacity, and it is now insisted that the evidence is insufficient to charge the defendant company with responsibility for Slater's conduct. As preliminary to the introduction of evidence of waiver, the burden was upon plaintiff to prove that Slater was the representative of the defendant company. Without objection plaintiff testified:

"An adjuster was sent to me by the company for the purpose of adjusting this loss. That was somewhere around 30 or 40 days--I couldn't say--it was not later than 6 weeks after the loss. The adjuster's name was Slater."

While this evidence is somewhat meager, still the existence and extent of Slater's authority were matters...