Loeb v. American Cent. Ins. Co.

• Decision Date: 18 November 1889
• Parties: LOEB et al. v. AMERICAN CENT. INS. CO.
• Court: Missouri Supreme Court

12 S.W. 374

99 Mo. 50

LOEB et al. v. AMERICAN CENT. INS. CO.

Supreme Court of Missouri.

November 18, 1889.

FIRE INSURANCE — CONDITION OF POLICY — WAIVER.

1. If the local agent of an insurance company, on being requested by the owner of insured property to notify the company of the loss, which occurred the night before the request, informs the owner that he has already sent notice, which is true, and the notice is received in due course of mail, a requirement of the policy that the insured shall give immediate notice of loss is sufficiently complied with, though the notice did not purport to be given on behalf of the insured.

2. A provision in the policy that no agent has power to waive any of its conditions does not refer to a stipulation printed on the back of the policy requiring prompt notice of loss. Such provision only affects matters prior to the loss.

3. The evidence, in an action for loss by fire, on behalf of plaintiffs, showed that they were told by the local agent of defendant that they need not send proofs of loss, as an adjuster would soon call to settle the business. An ineffectual attempt to arbitrate was made by plaintiffs and other companies who had also written policies on the property, and defendant's general adjuster then stated that he was not going into the arbitration, but that he would settle the loss when the arbitration was ended. The proofs were made and furnished after the stipulated time, and when they were handed to defendant's secretary he said that it was unnecessary to furnish proofs; that the company knew all about plaintiffs' loss. The local agent did not deny making the statement attributed to him, but the secretary testified that he made no such statements as to the necessity for proofs, but, on the contrary, told plaintiffs that they had forfeited their rights. It was not disputed that the proofs were retained without objection, and given to the general adjuster. Held evidence sufficient to justify a finding that defendant induced plaintiffs to believe that it intended to waive the delay.

BARCLAY, J., dissenting.

Appeal from circuit court, Linn county; G. D. BURGESS, Judge.

Action by Leon Loeb and Lazar Loeb against the American Central Insurance Company to recover on two fire insurance policies. Verdict and judgment for plaintiffs, and defendant appeals.

Hitchcock, Madill & Finklenburg, for appellant. A. W. Mullins, for respondents.

BLACK, J.

This suit is based upon two policies of insurance issued by the defendant to plaintiffs, who are partners in a mercantile business at Salisbury, in this state. One policy is in the sum of $2,800 upon a stock of merchandise, and the other in the sum of $300 upon two one-story frame buildings. There was a verdict and judgment for plaintiffs upon both policies. The policies are alike, and it is stated on the face of each that the damage by fire is to be paid in 60 days after the loss shall have been ascertained in accordance with the conditions of the policy; the sixth being that "all proceedings after loss shall be in accordance with the terms and stipulations printed on the back of this policy, which are hereby declared to be a part of this contract, and are to be resorted to in order to determine the rights and obligations of the parties hereto." On the back is this stipulation: "In case of loss, the assured shall give immediate notice in writing thereof to this company, and shall within 30 days thereafter render to this company a particular account of said loss, under oath, stating * * *." The defendant resists payment on these grounds only: First, a failure to give any notice of the loss; second, a failure to furnish proofs of loss within the 30 days. As to the latter the plaintiffs plead waiver.

1. The fire occurred on the 3d December, 1885, at about 1 o'clock A. M. The policy, it will be seen, requires the assured to give immediate notice of the loss. On the next day after the fire one of the plaintiffs went to Mr. Shotwell, who negotiated the insurance, and was the defendant's local agent at Salisbury, and requested him to notify the company of the loss. Mr. Shotwell then told the plaintiff he had already notified the company. The evidence shows that Shotwell had written a letter to the company giving full notice and information of the loss under the two policies. The letter does not, on its face, profess to be given for or in behalf of the plaintiffs, and the contention of defendant is that it is no notice given by the assured. It was held in Stimpson v. Insurance Co., 47 Me. 386, that a notice of loss given by the local agent at the request of the assured was sufficient, though the local agent, in his letter to the company, did not disclose the fact that it was written at the request of the assured. A written notice of the loss from the local agent, given from information communicated to him by the assured, was held to be a sufficient notice to the company in Insurance Co. v. Helfenstein, 40 Pa. St. 289. In that case the policy required notice to be given in writing by the assured. The plaintiffs in this case did not give any further written notice, because Shotwell said he had given the company notice. They adopted and relied upon his act and statement, and no intimation was made to them that the notice given was not sufficient. That the letter was received in due course of mail at the home office, in St. Louis, is not questioned. The notice given, under the above-stated circumstances, was a sufficient compliance with the terms of the policy.

2. The defendant makes the point that its agents had no power to waive any of the stipulations in the policy, and relies upon one of the conditions, which is in these words: "(7) No agent has any power to waive any condition of this contract." A full copy of the policy is not preserved in the record, but it seems this is one of the several conditions stated in the body of the policy. It has no reference to the stipulation, printed on the back, to the effect that the proof of loss must be furnished to the company within 30 days. The...