Browning v. Springfield Fire & Marine Ins. Co. of Springfield, Mass.

• Citation: 8 S.W.2d 941
• Decision Date: 20 July 1928
• Docket Number: 4300
• Parties: BROWNING v. SPRINGFIELD FIRE & MARINE INS. CO. OF SPRINGFIELD, MASS.
• Court: Court of Appeal of Missouri (US)

8 S.W.2d 941

BROWNING v. SPRINGFIELD FIRE & MARINE INS. CO. OF SPRINGFIELD, MASS.

No. 4300

Court of Appeals of Missouri, Springfield

July 20, 1928

Appeal from Circuit Court, Lawrence County; Charles L. Henson Judge.

Action by C. C. Browning against the Springfield Fire & Marine Insurance Company of Springfield, Mass. Plaintiff took an involuntary nonsuit, and appealed from the judgment after an unsuccessful effort to have the nonsuit set aside. Affirmed.

H. H Bloss, of Aurora, for appellant.

Hogsett & Boyle, of Kansas City, and E. J. McNatt, of Aurora for respondent.

OPINION

COX, P. J.

Action upon an insurance policy against injury to an apple orchard by hail. At the close of plaintiff’s testimony, the court, at the request of defendant, struck out part of plaintiff’s evidence and then sustained a demurrer to his evidence. Plaintiff took an involuntary nonsuit with leave to set same aside. Failing in his effort to get the nonsuit set aside, he appealed to this court.

Plaintiff is the owner of an apple orchard of 53 acres. His petition alleges that on May 5, 1926, defendant executed and delivered to him a policy of hail insurance by which it insured him against loss of apples by hail in the sum of $5,300, or $100 per acre, from the 5th day of May, 1926, to the 15th day of September, 1926; that on or about June 16, 1926, and at various other dates during said month and the month of May, 1926, and while said policy was in force, hails occurred and injured his apples to the extent of $45 per acre, amounting to the total sum of $2,385; that he had complied with all the conditions of the policy and had demanded payment of the amount of his loss, which had been refused, and demanded judgment for $2,350 and attorney’s fees for vexatious delay in not paying.

The answer admitted issuing the policy and denied all other allegations. Further answering, the defendant pleaded certain provisions of the policy which it alleged had not been complied with by plaintiff and which it contended released defendant from liability. The provisions relied upon here are: (1) That the policy only covered a loss by hail that equalled or exceeded 5 per cent. of the face of the policy; (2) that in case of damage by hail amounting to 5 per cent. or more of the total insurance, plaintiff should, within 48 hours thereafter, notify defendant of such damage by registered mail, and that the company. would not be liable for any damage, unless such notice was given, and that no other form of notice except that prescribed would be proper notice within the provisions of the policy; (3) that in case of damage equaling 5 per cent. or more of the total insurance, proof of loss in certain form should be sent the company by registered mail within 60 days thereafter.

The reply pleaded a waiver of the written notice and proof of loss. The facts alleged to constitute a waiver were substantially as follows: That at and immediately before the time of issuing the policy, the agent of defendant who solicited the insurance told plaintiff that, if he would take out a policy and there should be a loss or damage by hail, he would come down immediately and adjust same. All plaintiff would have to do would be to notify him and he would come down to plaintiff’s farm and see to it that his loss and damage were adjusted; that relying on that statement he was induced thereby to pay the premium and take out the policy; that the last hail that damaged plaintiff’s orchard occurred on Saturday about the last of June, 1926, and that on the following Monday, and within 48 hours after the last hail, he went to Billings, Mo., where the said agent was located and notified him of said hail and damage and said agent thereupon agreed and promised that he would come to the plaintiff’s farm and adjust said loss and that this agent also notified defendant of said damage and advised them to come and adjust said loss and also notified plaintiff that he had so notified defendant; that by reason of these things defendant had waived the provisions of the policy requiring written notice and proof of loss.

The evidence relied on by plaintiff to show waiver was substantially as follows: Plaintiff had hail insurance the previous year in two companies and was not satisfied with the adjustment of damage under those policies. When Mr. Algire, the agent of defendant, solicited plaintiff to take out this policy, he at first declined. The agent then said to him that, if he would take out this policy and should have any hail, to report to him, and he would attend to the loss, if he had any. Plaintiff also testified:

"He (the agent) said if we had a hail, to report to him, and he would come down and look us over around there, and, if we had any, he would see our loss through. After that statement I had taken out a policy."

Mr. Sullivan, a witness for plaintiff, testified that he was present when the plaintiff placed his insurance, and, in relating what occurred, he said:

"Well, Mr. Browning hesitated to take a policy on the start, saying he was not satisfied with the adjustment on the policy the year before and so he hesitated on taking it, and I had just taken out one myself that day, and Mr. Algire said if we would take them out, he would see that they treated us right, and he (meaning plaintiff) went further to say, ‘Be sure and send us down a good adjuster if you do; ’ and Mr. Algire said, ‘I will attend to that myself.’

Q. Was anything said about notice? Relate all that was said there.

A. He said, ‘If you boys have a hail, let me know, and I will attend to it."’

The foregoing is all that was said by Mr. Algire, the agent of defendant, prior to the time the policy was issued. As to the hails that hit the orchard, plaintiff testified:

That through June there were three or four hails. He did not remember the dates of them, but along the middle of June they had a pretty good sized hail and along the last of June or the first of July "we had a hail on Saturday evening before I reported the loss to Mr. Algire. I went up there Monday morning and reported to him that I had had a loss by these hails and he could notice it in the orchard. * * * I told Mr. Algire, I says, ‘Well, Mr. Algire, I have had some hail down there, and I came up to tell you about it, and I want you to come down and look the matter over; ’ and he said, ‘All right; I will be down; ’ and I came home and staid all day Thursday and I never did see Algire. He never showed up that I saw. He never did meet me there. About apple picking time I reported to him again."

On cross-examination he stated that this was the only time he gave Mr. Algire notice of any hail and he was not sure whether at that time he mentioned more than one hail to Mr. Algire. A letter written by Mr. Algire, the agent, to the company, dated October 20, 1926, was placed in evidence. In this letter he stated to the company, among other things:

"I was advised by C. C. Browning, route 2, Marionville, Mo., this morning that his apple orchard showed considerable hail damage and that apparently no effort had been made to adjust same, although the loss was reported some time ago. This loss was reported to me about the first of July-I don’t remember the exact date-and I in turn reported it to your office."

All the evidence relative to conversations between plaintiff and Mr. Algire, the agent of defendant, prior to the issue of the policy, was objected to, on the ground that the entire agreement was merged in the writing...