Morris v. Dutchess Ins. Co.
| Citation | 67 W.Va. 368 |
| Court | West Virginia Supreme Court |
| Decision Date | 26 April 1910 |
| Parties | Morris v. Dutchess Insurance Company. |
1. Insurance—Proofs of Loss—Waiver—Denial of Liability.
Denial by a fire insurance company, within the sixty days given the insured to furnish preliminary proofs of loss, of its liability on other grounds, is in legal effect a waiver of the con ditions of the policy requiring such proofs.
2. Same—Proofs of Loss—Waiver—Authority to Make.
But such denial and notice thereof to the insured to bind the insurance company must be by some officer or agent having authority, express or implied. Neither the declaration of a local soliciting agent nor of an adjuster not shown to have au thority to make such denial will bind the insurance company, or excuse the insured from compliance with the conditions of the policy to furnish such preliminary proofs.
3. Same—Action on Policy—Conditions Precedent—Proofs of Loss.
Furnishing of the preliminary proofs of loss as required by the conditions of a policy of fire insurance is a condition pre- cedent to any right of action thereon, and unless waived an ac tion on the policy does not accrue to the insured until such proofs have been furnished.
Error to Circuit Court, Harrison County. Action by Mary L. Morris against the Dutchess Insurance Company. Judgment for defendant, and plaintiff brings error.
Affirmed.
E. D. Lewis and D. J. Carter, for plaintiff in error.
Davis & Davis and E. B. Templeman, for defendant in error.
In an action on a policy of fire insurance defendant, in addi tion to the general issue, filed a statement, as provided by section 64, chapter 125, Code 1906, that it would also rely, by way of defense, first, on the fact that the insured had not given im mediate notice in writing to defendant of the loss, and had not within sixty days after the fire nor at any time furnished proofs of the loss, as required by the provisions of the.policy, wherefore no right of action thereon had ever accrued to plain tiff; second, on the fact that the building covered by the policy sued on had been allowed to be and become vacant and unoccu pied and to so remain for a period of more than ten days, in violation of the conditions of the policy, rendering the same void.
Plaintiff did not claim or prove on the trial that she had ever furnished defendant with proofs of loss required by the terms of the policy, but on the trial, without having filed any state ment in writing specifying the same, as required by section 65 of said chapter 125, Code 1906, insisted that defendant had waived such proofs of loss by denying, within the sixty days given by the policy for furnishing such proofs, any and all liability under the policy for the loss incurred.
Issues being joined on the pleadings filed the jury on the trial returned a verdict for plaintiff for $1145, which upon the defendant's motion was set aside and a new trial awarded.
To test the correctness of the judgment below, plaintiff has brought the case here upon a writ of error.
Said section 65 of chapter 125, Code 1906, provides that "if plaintiff intends to rely npon any matter in waiver, estoppel or in confession or avoidance of any matter which may have been stated by the defendant * * * " he "mnst file a state ment in writing, specifying in general terms the matter on which he intends so to rely" verified by affidavit. The point is not made that plaintiff did not give notice of waiver by defend ant of her promissory warranty to furnish proofs of loss, but it is doubtful whether under the provision of the statute, she should now be permitted to rely on such alleged waiver. We need not decide this question, however, for in our judgment the facts proven do not amount to a waiver by defendant.
This proposition, many times decided, that "denial by an insurance company of its liability on other grounds, within the time allowed for furnishing preliminary proofs of loss, is in law a waiver of the conditions of the policy requiring such proofs," is not controverted. Medley v. Ins. Co., 55 W. Va. 342 (Syl.pt 11); Deitz v. Ins. Co., 33 W. Va. 526 (Syl.pt. 4); Sheppard v. Ins. Co. 21 W. Va. 368 (Syl. pt. 14); Cleavenger v. Ins. Co., 47 W. Va. 595, 610. Defendant, however, denies that within the sixty days given for furnishing preliminary proofs of loss it or any one authorized by it denied its liability on other grounds. It is not claimed by plaintiff that any such denial is contained in any letter or notice in writing received from defend ant company. The evidence relied on is that on the day follow ing the fire plaintiff's husband, for her, verbally notified a local agent of defendant of the loss; that this agent notified the general agents at Charleston of the loss by letter, acknowledged by them, and that a few days afterwards they sent their ad juster, a special agent, to the place of the fire, who after viewing the premises, did not see or communicate with the insured or her husband, but stated to the local agent on his return...
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