Atlantic Horse Ins. Co. v. Nero

• Decision Date: 21 December 1914
• Docket Number: 16631
• Citation: 66 So. 780,108 Miss. 321
• Court: Mississippi Supreme Court
• Parties: ATLANTIC HORSE INSURANCE COMPANY v. NERO

66 So. 780

108 Miss. 321

ATLANTIC HORSE INSURANCE COMPANY v. NERO

No. 16631

Supreme Court of Mississippi

December 21, 1914

APPEAL from the circuit court of Leflore county. HON. MONROE MCCLURG, Judge.

Suit by Willis Nero, against the Atlantic Horse Insurance Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Hill &amp McBee, for appellant.

We submit that by the terms of the policy sued on, this company does not become liable to pay for the animal insured by reason of its death in any event, but only in accordance with the terms of its policy. By the policy it appears that the company is not to be liable on account of the death of any animal occurring by reason of the neglect, carelessness, act or will of its owner, agents, etc., or in case the animal is poisoned, unless by a veterinarian, nor if the animal is afflicted with glanders or farcy, nor if the home of the animal insured is changed, or if the owner of the animal shall mortgage it, or sell it, or place any other lien upon it.

As to whether or not these latter provisions of the policy were complied with the company did not know at the time of the filing the suit nor at any time, so far as the record shows. We say that before we can be called upon to defend a suit on account of this policy we are entitled to know first from the insured what he has to say with reference to how the death of the animal occurred, and whether or not it was among the excepted clauses. Before we are required to join issue with him as to whether or not he kept and performed the conditions of the policy we must have his proof of loss. In other words by our contract we are entitled to know what he claims with reference to his loss before we hear it for the first time in a court of law. While it is unnecessary to plead in the justice court that proofs of loss have been furnished, it is necessary to prove it.

"Where by the terms of a policy of insured on property, the payment of the loss is to occur after the furnishing of notice and certain proofs thereof, the furnishing of such notice and proofs constitute a condition precedent, which, must be pleaded and proved." Cooley on Insurance, sec. 3347. We take it that this authority cannot be denied. Cooley on Insurance, sec. 3516.

"Where a policy of life insurance requires notice and proof of death as a condition precedent to payment, notice alone is not sufficient; and though the insurers, on receipt of such notice, do not call for further proof, they do not thereby waive their right to insist upon it." Note 137, A. S. R 718.

"Mere silence of the insurer after receiving notice of loss cannot be construed as a waiver of the presentation of sworn proofs of loss. Central State Insurance Company v. Oates, 6 So. 83, 11 Am. St. Rep. 67.

We find this rule changed in Mississippi with reference to fire insurance at section 2593 of the Mississippi Code of 1906 which is as follows: "In case of destruction or damage of property by fire where the same is insured against fire, it shall be the duty of the insurance company or companies liable for such loss, within a reasonable time after receiving notice thereof, to furnish to the insured, proper blanks upon which to make the required proof of such loss, with full directions as to what proof is required to secure the payment of the policy, and if the insurance company fails to comply with this section, the failure of the insured to make proper proof of loss prior to the suit shall be no defense to a suit upon the policy, and in all cases the insured shall have a reasonable time within which to make such proof after the blanks and directions are received." But this section applies to fire insurance and leave the rule with reference to insurance of other kind unchanged.

Pollard & Hamner, for appellee.

Appellant defends on the ground that proofs of loss as required by the policy were never made. We reply that there was both an implied waiver and an express waiver by the company of the proofs of loss. Implied Waiver. Counsel for appellant in his brief, says: "The insured having notified the company did nothing further, the company did nothing further. The question then is, whose move is it?" We reply that the insured did notify the company by telegraph and registered letter of the loss, just as the policy required; that the company did do something further, to wit: wired the insured to "saw off sufficient portion of lower jaw to retain front teeth. Send us." The insured then did something further, to wit: he sawed off the portion of lower jaw and sent it. Henceforward the company made no further requirements of him; by their telegram and consequent silence after Nero had complied with its terms, the company impliedly waived a further proof of death and of loss; after he had "delivered" the lower jaw as proof of death, and certainly it was proof, no animal could live without its lower jaw, if this was not sufficient, then good faith required of the company that they make demand of him for such other proof as they needed. "If the insurer acts so as to induce the assured to reasonably believe that they would not insist upon it, they will be estopped afterward from insisting upon it."

McPike v. Insurance Co., 61 Miss. 43; Providence Washington Insurance Co. v. Wolf, 120 Am. State Rep. 400; Welsh v. Insurance Co., 31 Am. St. Rep. 787; also, 19 Am. State Rep. 719; Gould v. Dwelling House Ins. Co., and numerous cases cited, the last case a well considered and possibly the leading case, says: "If the insured, in good faith and within the stipulated time does what he plainly intends as a compliance with requirements of policy, good faith equally requires that the company shall promptly notify him of their objections so as to give him opportunity to obviate them and mere silence may mislead him to his disadvantage to suppose the company satisfied as to be of itself sufficient evidence of waiver by estoppel."

If the company had never sent its telegram in response to the notice of death, they might assume the position taken by counsel for appellant and deny liability, for their absolute silence might have protected them; but they did not keep silent. They answered Nero's telegram and letter and so broke the silence under which they might have claimed protection.

The instant case is materially different for the case cited in appellant's brief of Cen. State Ins. Co. v. Cates, 6 So. 83, 11 Am. St. Rep. 67, the insurance company in that case was absolutely silent, no preliminary proofs were ever sent, no acknowledgment made of anything, and that case cannot apply.

But if there was no implied waiver, there was an express waiver. It was contained in their letter of June 27th, addressed to the attorneys for plaintiff. The authorities are numerous that the denial of liability is a waiver by the company of proof of loss. Planters Ins. Co. v. Comfort, 50 Miss. 675; Security-Mutual Ins. Co. v. Woodson, 116 Am. St. Rep. 75, and countless other cases.

This letter of June 27th was an unequivocal denial of liability note especially the wording of the letter, to wit: "This man has no claim against us." Nothing could be more absolute. "He never has complied with the conditions of our policy. We do not think that he has any claim whatever." Thus far the letter expresses the opinion of the company itself, as to its liability, namely, that the man has no claim and that the company does not think that he has any claim whatever. The remainder of the letter, "but if he thinks that he has, or if you think that he has, he should present it...