Nickell v. Phoenix Insurance Company of Brooklyn

• Decision Date: 08 June 1898
• Parties: Nickell v. Phoenix Insurance Company of Brooklyn, Appellant
• Court: Missouri Supreme Court

46 S.W. 435

144 Mo. 420

Nickell v. Phoenix Insurance Company of Brooklyn, Appellant

Supreme Court of Missouri, First Division

June 8, 1898

Transferred from Kansas City Court of Appeals.

Affirmed.

J. W Peery and J. L. McCullough for appellant.

(1) A local agent of an insurance company, whose duties are to fix rates, countersign policies and collect premiums, and who is not shown to be authorized to adjust or settle losses, has no power to waive the furnishing of proofs of loss. Wood on Ins [1 Ed.], p. 730; Wood on Ins. [2 Ed.], secs. 429 and 447; Ostrander on Ins., p. 556, sec. 256; May on Ins. [3 Ed.], secs. 138, 465; Bowlin v. Ins. Co., 36 Minn. 433; Bush v. Ins. Co., 63 N.Y. 531; Van Allen v. Ins. Co., 64 N.Y. 469; Smith v. Ins. Co., 60 Vt. 682; Harrison v. Ins. Co., 56 F. 732; Ins. Co. v. Kennerly, 31 S.W. 155; Hollis v. Ins. Co., 65 Iowa 454; Ermentraut v. Ins. Co., 65 N.W. 635; McCollum v. Ins. Co., 65 Mo.App. 309; Albers v. Ins. Co., 68 Mo.App. 543; Barre v. Ins. Co., 76 Iowa 609; Lohnes v. Ins. Co., 121 Mass. 441; Kyte v. Com. Un. Ass. Co., 144 Mass. 43; Shapire v. Ins. Co., 63 N.W. 614; Kahn v. Ins. Co., 34 P. 1059; Engerbertson v. Ins. Co., 58 Wis. 301; Von Genetchen v. Ins. Co., 75 Iowa 544. (2) It devolves upon the plaintiff to prove that the local agent, who he claims made the waiver, had the power and authority to adjust losses; not having offered any such evidence, the objections to the evidence should have been sustained, and the defendant's declarations of law should have been given. Wood on Ins. [2 Ed.], sec. 429; May on Ins. [3 Ed.], sec. 138; Bush v. Ins. Co., 63 N.Y. 531; Lohnes v. Ins. Co., 121 Mass. 439; Ins. Co. v. Davis, 59 N.W. 698; Williams, Supt., v. Edwards, 94 Mo. 447; 1 Greenl. Ev., sec. 114. (3) The clause in the policy prohibiting the waiver or modification of any of the provisions, stipulations or conditions of the policy, clearly shows that it applies to all of the provisions or conditions of the entire policy, and it names the particular officers who may waive such of them as are not required to be done by indorsement. This clause is binding and valid, includes the provisions as to proofs of loss, and deprives the local agent of power to waive that provision of the policy. Gould v. Ins. Co., 90 Mich. 302; Cleaver v. Ins. Co., 65 Mich. 527; Quinlan v. Ins. Co., 133 N.Y. 356; Baumgartel v. Ins. Co., 136 N.Y. 547; Carey v. Ins. Co., 54 N.W. 18; Porter v. Ins. Co., 160 Mass. 183; Moore v. Ins. Co., 141 N.Y. 219; Tripp v. Ins. Co., 59 N.W. 1; Knudson v. Ins. Co., 75 Wis. 198; Connell v. Ins. Co., 18 Wis. 387; Hankins v. Ins. Co., 70 Wis. 1; Marvin v. Ins. Co., 85 N.Y. 278; Kirkman v. Ins. Co., 57 N.W. 952.

Harry K. West for respondent.

(1) A local or recording agent of a foreign insurance company, in the absence of evidence to the contrary, is presumed to be a general agent, and, as such, has power to waive proofs of loss. McCollum v. Ins. Co., 67 Mo.App. 66; McCollough v. Ins. Co., 113 Mo. 606; Joyce on Ins., secs. 536, 537, 581, 582 and 583; May on Ins., sec. 461; Biddell on Ins., sec. 1019; Wood on Ins., sec. 419; Railroad v. Ins. Co., 105 Mass. 570; Ins. Co. v. Perry, 30 N.E. 637; Ins. Co. v. Dunsmore, 75 Ill. 14; Pennell v. Ins. Co., 73 Ill. 303; Ins. Co. v. Munger, 49 Kan. 178; Ins. Co. v. McLanathan, 11 Kan. 533. (2) When the policy requires the assured to deliver proofs of loss to the company and does not require such proofs to be delivered to some particular officer or agent of the company, a delivery of proofs to such local or recording agent is a delivery to the company, and a waiver of such proofs by such agent is a waiver by the company. See authorities under point one. (3) The provision "that no agent or other representative of this company (excepting only the principal officers of the company at New York and its general agent at Chicago) shall have any power to waive or in any manner to modify any provisions or conditions of this policy . . . ." has reference to those stipulations which are a part of, and necessary to give validity to, the contract of insurance and not to those matters which are to be performed after there has been a loss, such as giving notice and furnishing a verified account of the loss. Loeb v. Ins. Co., 99 Mo. 50; Titsworth v. Ins. Co., 62 Mo.App. 310.

OPINION

Marshall, J.

Defendant insured plaintiff's property, in his photograph gallery at Marceline, Missouri, against loss or damage by fire, for one year, commencing April 20, 1894. William Taylor, who resided at Marceline, was the agent of defendant at that place, represented the company in making the contract, collecting the premiums and signed the policies. During the life of the policy, on September 13, 1894, the property was totally destroyed by fire. It is admitted that the property was worth much more than the amount of the policy and no question was raised in the case as to the validity of the contract of insurance. The loss was an honest one. The day after the fire the plaintiff went to see Taylor and asked him what he must do -- whether he must give him or the company notice. Taylor told him he "would inform the company of the fire, and that the adjuster would be here in a few days to settle the loss. I asked him what I should do about the proof of loss; he said it is not necessary to make proof of loss, that the adjuster would be here as soon as he could get here and the matter would be settled." The plaintiff saw Taylor again two or three times about the loss, and finally about three days after the fire Taylor wrote a letter to the company notifying it of the loss, and gave the letter to plaintiff, who mailed it. A week or ten days later plaintiff again saw Taylor, who told him the adjuster would be there in a few days and settle the loss. Pinckney, a special adjuster for the defendant, came to Marceline, but did not meet plaintiff. About the fifth of October Taylor told plaintiff Pinckney had no authority to adjust the loss and that Welch, another adjuster for the company, would attend to it. On the twelfth of November, no settlement having been made, plaintiff, under the advice of counsel, sent formal proof of loss to the company at Chicago. On the eleventh of January, 1895, the company, by Welch, adjuster, returned the proof of loss, and refused to consider the claim because no proof of loss was furnished the company within thirty days after the date of the fire, as the policy called for. Plaintiff then brought this suit, setting up the contract of insurance, the loss, and averring inter alia that proof of loss had been given. The answer admitted the contract of insurance, but denied the other allegations of the petition. The circuit court entered judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was reversed, but as one of the judges of that court was of opinion that the decision was in conflict with McCullough v. Ins. Co., 113 Mo. 606, 21 S.W. 207, the court certified the case to this court.

I. Outside of the questions of practice involved, to which reference will hereafter be made, the legal proposition to be decided is, whether an agent of an insurance company who has power to effect insurance, countersign policies and collect premiums, has prima facie power to waive proof of loss. The plaintiff asserts the affirmative of this proposition, and the defendant denies it, and insists that while an adjuster has been held to have such power, the agent has not, and in order to bind the company the burden of proof is upon the insured to show that power in the agent. In this case there is no proof as to the power of the agent except as it may be inferred from the business transacted, nor were the duties and power of the adjuster shown. The circuit court sustained plaintiff's contention. The Kansas City Court of Appeals agreed with defendant's view of the law.

Wood on Insurance [2 Ed.], section 429, page 915, lays down the doctrine that an agent who has authority to issue and countersign policies, has no authority to adjust and settle losses or to waive the performance of conditions in the policy; that ratification by the company of the acts of such agent must be shown. Ostrander on Insurance [2 Ed.], section 57, page 197, says the local agent's power to waive proof of loss depends upon his authority to settle claims and that as the duties of a local agent and of an adjuster are different, the local agent can not waive proof of loss unless it is shown that he had authority to settle claims or had apparent authority as shown by previous dealings of the company. This view of the law is also laid down in the following cases: Bowlin v. Ins. Co., 36 Minn. 433, 31 N.W. 859; Bush v. Ins. Co., 63 N.Y. 531; Van Allen v. Ins. Co., 64 N.Y. 469; Smith v. Ins. Co., 60 Vt. 682, 15 A. 353; Burlington Ins. Co. v. Kennerly, 31 S.W. 155; Ermentraut v. Ins. Co. (divided court), 65 N.W. 635; Shapire v. Ins. Co. (divided court), 63 N.W. 614; Lohnes v. Ins. Co., 121 Mass. 439; Engebretson v. Ins. Co., 58 Wis. 301, 17 N.W. 5; McCollum v. Ins. Co., 65 Mo.App. 304. These cases proceed upon the assumption that an agent who has power to effect a contract of insurance, to countersign policies, in order to give them vitality and binding force, and to collect premiums, is a special limited agent, and not a general agent, and that the duties and powers of such a special and limited agent do not authorize him to waive proof of loss.

On the other hand, a contrary view of the law is adopted by the following text writers and in the following cases. May on Insurance [3 Ed.], sections 461 and 463, says that the notice and proof of loss is intended for the benefit of the insurer and notwithstanding the policy requires it to be in writing, nevertheless ...