Croce v. London & Lancashire Fire Ins. Co.

• Decision Date: 01 April 1924
• Docket Number: No. 18339.,18339.
• Parties: CROCE v. LONDON & LANCASHIRE FIRE INS. CO., LIMITED, OF LONDON, ENGLAND.
• Court: Missouri Court of Appeals

260 S.W. 760

CROCE v. LONDON & LANCASHIRE FIRE INS. CO., LIMITED, OF LONDON, ENGLAND.

No. 18339.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Appeal from St. Louis Circuit Court; Charles W. Rutledge, Judge.

"Not to be officially published."

Action by Angelo Croce against the London & Lancashire Fire Insurance Company, Limited, of London, England, a corporation. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Leahy, Saunders & Walther, of St. Louis, for appellant.

Harry F. Russall, of St. Louis, for respondent.

BECKER, J.

Plaintiff sued the defendant company on a policy of insurance in the sum of $1,100 issued by the defendant against the theft of a Ford sedan. On trial to a jury a verdict resulted in favor of plaintiff for the full amount of the policy, with Interest, damages and attorney's fees. From the resulting judgment of $1,520.50 the defendant appeals.

Plaintiff's petition is in the usual form, alleging that the sedan covered by the policy of insurance in question was stolen on the 16th day of March, 1921, that plaintiff had conformed to the requirements of the policy with reference to notice, etc., and that payment has been refused, and prays for the recovery of the amount of the policy, together with the statutory penalties for vexatious refusal to pay. The answer admitted the issuance of the policy, and besides a general denial affirmatively pleaded the conditions of the policy, which required the insured to submit to the defendant company within 60 days, unless the time was extended in writing, a sworn proof of loss. The reply was a general denial.

As to the testimony, it is sufficient to state that plaintiff adduced testimony tending to show acts on the part of an adjuster of the defendant company which, if believed by the jury, would in law amount to a waiver on the part of the defendant company of the requirement that insured submit a sworn proof of loss within 60 days after such loss had occurred. The defendant adduced as a witness A. B. Lansing, a lawyer and adjuster for various insurance companies. He testified that he represented the defendant company in the negotiations with the plaintiff with reference to the loss in question. His testimony was in direct conflict with that of plaintiff on the matter of the acts which Plaintiff relied upon as constituting a waiver. Of his testimony it may be said that, if the jury believed it, then as a matter of law there was no waiver on the part of the defendant company of the said provision in the policy requiring sworn proof of loss within 60 days after loss.

In this state of the record it is pointed out that the main instruction given at plaintiff's request, which covered the entire case and directed a verdict, contained the following with reference to the question of waiver.

"And if you further find from the evidence that the plaintiff gave defendant's agent notice of said loss on or about March 17, 1921, and that the defendant, by the statements and conduct of its agents after such notice, if any, waived the furnishing of a sworn statement by plaintiff of the theft, if any, of said automobile within 60 days thereof, if you so find, then your verdict will be for plaintiff."

Appellant here contends that the giving of the instruction in question was error prejudicial to the defendant company. In support of this contention it is urged that the...