Okey v. State Ins. Co. of Des Moines

• Decision Date: 06 February 1888
• Citation: 29 Mo.App. 105
• Parties: T. G. OKEY, Respondent, v. STATE INSURANCE COMPANY OF DES MOINES, IOWA, Appellant.
• Court: Kansas Court of Appeals

29 Mo.App. 105

T. G. OKEY, Respondent, v. STATE INSURANCE COMPANY OF DES MOINES, IOWA, Appellant.

Court of Appeals of Missouri, Kansas City.

February 6, 1888

APPEAL from Polk Circuit Court, HON. W. I. WALLACE, Judge.

Affirmed.

The case is stated in the opinion.

GOODE & CRAVENS, for the appellant.

I. The petition containing no sufficient averments of the conditions precedent to right of recovery the court erred in admitting any testimony in the case after defendant objected on that ground. Facts must be stated as they exist and show a legal cause of action. State to use v. Matson, 38 Mo. 489; Link v. Vaughan, 17 Mo. 585.

II. Preliminary proofs of loss are conditions precedent to the right of recovery by assured. Ins. Co. v. Kyle, 11 Mo. 278; Inman v. Ins. Co., 12 Wend. [N. Y.] 452; Noonan v. Ins. Co., 21 Mo. 81. In the last case above cited it is expressly declared that the entering upon an investigation of the loss and offer to pay a certain amount will not constitute a waiver, even in a policy where there is nothing said as to what shall constitute a waiver. In the policy here sued on it is expressly stipulated and agreed by the parties that nothing less than a " distinct agreement clearly expressed and endorsed on this policy shall be construed as a waiver of any printed or written condition or restriction therein." How, then can anything that was said or done by the company be tortured into a waiver of the proofs of loss in the very face of such an agreement?

III. It is true that defects in, but not entire absence of preliminary proofs of loss may be deemed waived, when the insurers place their refusal to pay upon other grounds; but certainly not so even in that case when the policy-holder has entered into an agreement that he will not claim anything as a waiver which is not endorsed on the policy under a distinct agreement to that effect. Russell v. Ins. Co., 55 Mo. 593; Martin v. Ins. Co., 32 Am. Dec. 220; Sims v. Ins. Co., 47 Mo. 61; Ins. Co. v Tyler, 30 Am. Dec. 90; Ins. Co. v. Francis, 19 Am. Dec. 549.

IV. Even in the absence of contract as to what, and what only shall be taken as a waiver of conditions in the policy--it is for the court, under definite instructions on the subject, to define and inform the jury just what acts will amount to a waiver. Ins. Co. v. Kyle, supra; Minor v. Edwards, 12 Mo. 139; Phillips v. Ins. Co., 14 Mo. 231; Ins. Co., v. Hamer, 2 Ohio St. 476; Byrne v. Ins. Co., 20 Ind. 104; Lawrence v. Ins. Co., 10 Pet. [U. S.] 507. It will be observed in all the above cases there was an attempt on the part of the insured to comply with the terms of the policy, but the proofs were defective. In the case now under consideration there was no attempt whatever to furnish preliminary proof, nor, strange to say, was there effort made at the trial to explain why these plain and just provisions of the policy were ignored by the plaintiff.

V. Again there was no waiver of these conditions, because the fire occurred on the fifteenth of March, and not until the twenty-first of June following did the company send an adjuster to even inquire into the nature of the loss. And this same adjuster, after failing to effect a compromise with the assured, distinctly informed him in the last interview at Humansville, on the twenty-first of June, when he refused their compromise proposition, that " the company neither admits nor denies liability, and if you don't accept this proposition you will have to comply with all the conditions in that policy." Then, in the subsequent letter of the adjuster to the plaintiff, and before the suit was brought, he is again advised that he is not perhaps in a condition to maintain a suit until he has complied with the terms of his policy. Yet he refuses to furnish the company any proofs whatever. Plaintiff is clearly not entitled to recover.

W. R. HUDSON and J. D. ABBE, for the respondent.

I. The court was right in admitting the evidence and overruling defendant's objections thereto. The issues were tendered by the pleadings. Plaintiff had averred performance of all the conditions of the policy. Defendant answered, setting up failure to file proofs of loss, and plaintiff filed reply, setting up waiver of these conditions as to proofs. Compliance with the conditions precedent was properly pleaded. Rev. Stat., sec. 3551; Bliss on Code Pleadings, sec. 301. A waiver of conditions can be proved under an allegation of performance. May on Insurance (2 Ed.) sec. 590, p. 893; Ins. Co. v. Kyle, 11 Mo. 278; Russell v. Ins. Co., 55 Mo. 593; Schultz v. Ins. Co., 57 Mo. 331.

II. On the question of waiver, there was sufficient evidence to justify the court in submitting the case to the jury. The defendant had been notified of the loss; had promised that its adjuster would be there shortly to settle the loss; had afterwards, by letter to plaintiff, explained the delay to be occasioned by the fact that its adjuster had so much to do that he had not been able to get there, and had declared that it was as anxious to get the matter settled as plaintiff could be; did send its adjuster who declared the loss was an honest one, and proposed, not to compromise, but to settle and pay on his own terms, and during all this had not given a hint that it claimed any default on the part of plaintiff until more than ninety days after the loss, and then the adjuster tells the plaintiff that if he does not settle on his terms plaintiff will have to comply with all the conditions of his policy, although one of the conditions of the policy required the proofs of loss to be furnished to the defendant within sixty days after it had occurred, and even after that the adjuster makes his offer to replace the property, and darkly hints to plaintiff that he had better examine his policy and see if he is in a condition to bring suit; never hinting that the company required proof of loss until too late for plaintiff to make the proof. Waiver may be inferred from the acts and conduct of the insurer. Rokes v. Ins. Co., 51 Md. 512, and cases there cited; Erwin v. Ins. Co., 24 Mo.App. 145, 153; Dobbins v. Edmunds, 18 Mo.App. 307. The clause in the policy in regard to requiring a waiver to be in writing does not refer to stipulations to be performed after a loss has occurred. Rokes v. Ins. Co., 51 Md. 512; Ins. Co. v. Ice Co., 36 Md. 102; Whited v. Ins. Co., 76 N.Y. 415. Waiver need not be made in writing and may be by an agent. Parks v. Ins. Co., 26 Mo.App. 511; Parks v. Ins. Co., 26 Mo.App. 537; Whited v. Ins. Co., 76 N.Y. 415. Entire proof of loss may be waived, as well as defects in the proof made. Rokes v. Ins. Co., supra; Dobbins v. Edmunds, 18 Mo.App. 307. Waiver is a question of fact to be submitted to the jury, and if there was any evidence, tending to show a waiver, the court did right in submitting it to the jury. Budd v. Hoffheimer, 52 Mo. 297; Cahn v. Reid, 18 Mo.App. 115; Paxon v. Pierce, 25 Mo.App. 59.

III. The court was right in refusing plaintiff's instruction in regard to the limitation of six months as conditioned in the policy. The loss occurred on the fifteenth of March, 1886, and plaintiff's petition was filed on the eleventh day of September, 1886. This was, by statute, the bringing of the suit. Rev. Stat., sec. 3485, p. 596. But authorities on this point are unnecessary. Even the summons was issued on the fifteenth of September, 1886, and within six months of the loss.

IV. The case was fairly tried, and submitted to the jury under proper instructions. The verdict was for the right party and is sustained by the evidence.

PHILIPS P. J.

This is an action based upon a contract of insurance against loss by fire. Plaintiff recovered judgment below, and defendant prosecutes this appeal. The property insured was a one-story frame building, valued at one hundred dollars, and one American fruit evaporator contained therein, valued at three hundred dollars. The premium was paid and policy issued in October, 1885, and was to run for one year. The fire occurred on the fifteenth day of March, 1886. The policy contained the usual stipulations respecting the duty of the assured, in case of loss, to give immediate notice thereof to the insurer, and to furnish an account of the loss, etc.

The answer tendered the following specific defences: (1) that plaintiff failed to give notice and furnish the required proof of loss; (2) that the action was barred because the same was not brought within the period of six months after the loss, as provided in the policy.

The reply tendered the general issue as to the new matter set up in the answer, and further pleaded that defendant, by its conduct, etc., had waived the requirement as to furnishing proof of loss.

I. At the trial, as in the motion in arrest of judgment, the defendant raised an objection to the sufficiency of the petition, on the ground that it did not aver performance by the plaintiff of the condition precedent contained in the policy, relating to the furnishing of proofs of loss. The petition distinctly avers that " plaintiff has complied with all the conditions of said policy upon his part." The Supreme Court have held this to be sufficient under our practice act. Richardson v. Ins. Co., 57 Mo. 413.

II. The contract required that the assured, in the case of loss by fire, should immediately give notice thereof to the company and should also, within sixty days, furnish the proofs of loss to the company. The notice was given, but the prescribed proof of loss was not furnished. To excuse this failure the plaintiff relies upon the claim that defendant, by its acts, conduct, and declarations, had waived this condition of the contract. To this, defendant objects (1) that no such issue is tendered by the pleadings. It was said in St. Louis Ins. Co. v. Kyle, 11 Mo....