Bank v. Thuringia Ins. Company
| Decision Date | 28 November 1904 |
| Citation | 83 S.W. 534,109 Mo.App. 654 |
| Parties | EXCHANGE BANK, Respondent, v. THURINGIA INSURANCE COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jasper Circuit Court.--Hon. J. D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
Fyke Bros., Snider & Richardson for appellant.
(1) The provision of the policy requiring proofs of loss, is, unless waived, a condition precedent to plaintiff's right to recover. Leih v. Ins. Co., 37 Mo.App. 542. (2) The form furnished by appellant embraced a bank form for magistrate's certificate. That was a sufficient requirement. Sullivan v. Ins. Co., 89 Mo.App. 106. Moreover, respondent was advised that compliance would be waived. Loesch v. Casualty Co., ___ Mo. ___, 75 S.W 624. (3) The court erred in admitting in evidence the answer filed by appellant in the previous case. Dezell v Fidelity Co., ___ Mo. ___, 75 S.W. 1102. (4) The court erred in permitting plaintiff's cashier to testify that Pinkney offered to adjust the loss if plaintiff would knock off $ 250. Such offer, if made, was in an effort to avoid a lawsuit, and, therefore, not admissible. Hunter v Helsley, 98 Mo.App. 620; Huetteman v. Viesselman, 48 Mo.App. 582; Fuik v. Ins. Co., 60 Mo.App. 673; Ferry v. Taylor, 33 Mo. 323. (5) The first instruction given for plaintiff and the instruction given by the court of its own motion are irreconcilable. (6) The court erred in overruling defendant's demurrer to the plaintiff's evidence.
W. R. Robertson for respondent.
(1) The fact alone that defendant's adjuster went to the place of loss, spent several days at investigation, inquiring fully of plaintiff as to all of the circumstances, investigated the value of the property destroyed and made no objections except to want to reduce the amount of the policy $ 250, constituted a waiver of the requirement in the policy for the furnishing of proofs of loss and certificate of notary public. Summers v. Ins. Co., 45 Mo.App. 47; McCullom v. Ins. Co., 67 Mo.App. 66; Porter v. Ins. Co., 62 Mo.App. 520; McNally v. Ins. Co., 33 N.E. 477, 137 N.Y. 389. (2) It was proper to admit in evidence the answer filed by defendant in the suit brought at Joplin. Murphy v. Ins. Co., 70 Mo.App. 86. (3) No error was committed by the court in permitting the witness, J. P. Stewart, to testify relative to a conversation had with the local agents of defendant company. Brennen v. Ins. Co., 99 Mo.App. 720; Nickell v. Ins. Co., 114 Mo. 425; Purcell v. Guar. Co., 94 Mo.App. 14; Disk v. Ins. Co., 95 Mo.App. 709; Loeb v. Ins. Co., 99 Mo. 58. (4) Abandoned pleadings in the same suit and also in another suit between the same parties relative to the same subject-matter, may be admitted in evidence and considered as any other declaration or admission of the party against whom it is offered. Bailey v. O'Bannon, 28 Mo.App. 46; Schad v. Sharp, 95 Mo. 576; Bowman v. Heating Co., 80 Mo.App. 636; Spurlock v. Railroad, 125 Mo. 406. (5) When the whole record in a case discloses that a judgment appealed from is for the right party it is the imperative duty of the appellate court to affirm it notwithstanding erroneous instructions may have been given and errors committed in the admission of testimony. Long Bros. v. Coal Co., 56 Mo.App. 611; Cass Co. v. Bank, 157 Mo. 137; Wagner v. Elec. Co., 82 Mo.App. 300; Bank v. Wells, 98 Mo.App. 578; McGannon v. Ins. Co., 171 Mo. 154; Edmonston v. Jones, 96 Mo.App. 92.
This is an action on a policy of fire insurance which contained a provision requiring the insured to furnish proof of loss and, if required, the certificate of a notary public reciting certain specified facts, within sixty days after the fire. The answer pleaded this policy provision and a failure to comply therewith.
At the trial evidence was adduced tending to show that the fire happened July 2, 1902; that two or three weeks thereafter the defendant's adjuster, Pinckney, visited the scene of the fire and after many conferences with plaintiff's president and others, and after spending two days in investigating the cause of the conflagration, the extent of the loss, etc., proposed to such president that if he would "knock off" $ 250 of his claim, which was $ 1,000, it would be allowed--but to this, plaintiff's president would not agree; that later on defendant's adjuster, Lund, joined Pinckney in an attempt to adjust and settle the plaintiff's loss; that the former proposed to plaintiff's president that if he would "knock off" $ 200 of plaintiff's claim on account of the machinery that the claim would be settled--but this the plaintiff's president also declined, insisting that the loss was total and that the property covered by the policy was worth double the amount for which it was insured. No further steps seem to have been taken by either party looking to the adjustment until July 21, when the adjuster wrote the plaintiff referring to the latter's loss under its policy and requesting it to have "Dutch Gus"--an employee of plaintiff who had been in charge of certain machinery in the destroyed plant--make the affidavit enclosed and return it to him by first mail.
The plaintiff received this letter in due course of mail but was unable to locate the whereabouts of "Dutch Gus" for some days, and so the same was not answered until the 28th, when the plaintiff wrote the adjuster requesting him to make certain changes in said affidavit. On the 29th the adjuster replied to the plaintiff's letter of the preceding day saying that he therein returned the affidavit corrected as had been requested by plaintiff and asking the latter to return it by an early mail. On the last-named date the plaintiff wrote the adjuster enclosing the corrected affidavit duly "executed" and expressing the hope that the same would be satisfactory.
It appears that on the 28th, and before the adjuster had heard from the plaintiff or received its letter enclosing the affidavit, he had reached the conclusion that the latter had not intended to procure and return the affidavit to him and wrote the plaintiff to the effect that, on July 21 he had written requesting the execution of the affidavit therein enclosed and to which he had received no reply, and that he therefore concluded that it was not plaintiff's intention to comply with said request; hence, that he mailed therewith the statutory proofs of loss and schedule paper for use in making up and presenting any claim it made under the policy. This letter also advised the plaintiff that none of the policy conditions had been waived and that strict compliance would be required, etc. It appears that defendant's letter of the 28th was written on the same day as that of the plaintiff returning the affidavit for correction. The latter was not received by the defendant until the 29th, on which day it made the correction and returned it to plaintiff. Afterwards, on the same day, the plaintiff returned the corrected affidavit to the defendant "executed" as requested and in which was contained the expression that it "trusted the same would be satisfactory," and referring in the same connection to the letter of defendant enclosing corrected proofs of loss and stating that it--the plaintiff--"did not understand this, as we were of the impression that this was all explained and made out to you when you were here," etc. To this the defendant made no response.
It is an indisputable proposition that a clause of an insurance policy requiring the insured to furnish proof of loss is a condition precedent and without the performance of which there can be no recovery unless there be a waiver. A waiver is a mixed question of law and fact, but each case must depend upon its peculiar facts and circumstances. It is a question of intention and a fact to be determined by the jury. [Ehrlich v. Ins. Co., 88 Mo. 249; Okey v. Ins. Co., 29 Mo.App. 105; Marchildon v. O'Hara, 52 Mo.App. 523; Stiepel v. Assn., 55 Mo.App. 224; Summers v. Ins. Co., 45 Mo.App. 46.] It is not required that a waiver be express. It may be implied from the acts and conduct of the agents of the insurer. There should, however, be some official act or declaration during the currency of the time dispensing with it--something from which the assured might reasonably infer that the insurer did not mean to insist on it. Summers v. Ins. Co., supra, and...
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