Talbert v. Northwestern Nat. Ins. Co., Inc.

• Decision Date: 02 January 1929
• Docket Number: 28859
• Citation: 120 So. 24,167 La. 608
• Court: Louisiana Supreme Court
• Parties: TALBERT v. NORTHWESTERN NAT. INS. CO., Inc

120 So. 24

167 La. 608

TALBERT v. NORTHWESTERN NAT. INS. CO., Inc

No. 28859

Supreme Court of Louisiana

January 2, 1929

Rehearing Denied January 28, 1929

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.

Action by W. D. Talbert against the Northwestern National Insurance Company, Inc. Judgment for plaintiff, and defendant appeals.

Affirmed.

John C Hollingsworth, of New Orleans, for appellant.

J. D Womack, R. F. Walker, and Taylor, Porter, Loret & Brooks, all of Baton Rouge, for appellee.

OPINION

ROGERS, J.

The premises, No. 116 St. Gabriel street, in the city of Baton Rouge, were damaged by fire on the night of October 22, 1923. They were owned, at the time, by plaintiff and were insured in the Northwestern National Insurance Company, Inc., defendant herein, under a policy for $ 3,000 and in the Westchester Fire Insurance Company of New York under a policy for $ 5,000. This is a suit for the recovery from the defendant insurance company of its proportion of the damage caused by the fire, together with the statutory penalty for its failure to pay the loss within the period fixed by law.

The defendant denied liability on two grounds, viz.: (1) That the plaintiff failed to make any proof of loss; and (2) that the damage was not ascertained by an appraisal as provided by the terms of the insurance contract. Defendant further set up that the amount claimed by plaintiff as his loss was excessive.

The court below gave plaintiff judgment for $ 2,190 as the proportion of his loss due by defendant, together with 12 per cent. on the amount as statutory damages, with interest and costs. Defendant appealed.

The first ground of defense, that plaintiff failed to make proof of loss, is not well founded and is not urged on appeal. The record shows, beyond dispute, that the defendant was promptly notified of the fire and requested to furnish plaintiff with blank proofs of loss; that, instead of complying with the request, the defendant placed the matter in charge of its adjuster, who entered into negotiations with plaintiff and his attorney with a view of settling the loss. During the course of the negotiations, which lasted several months, the adjuster of the defendant sent plaintiff several proofs of loss with the blanks filled in so as to show a loss much smaller than that claimed by the plaintiff. Plaintiff refused to sign these documents, and repeatedly demanded blank proofs of loss in order that he might execute them in accordance with his view of what his damage actually was, but without avail. Finally, plaintiff erased the figures from one of the proofs of loss sent him by the defendant's adjuster and substituted therefor his own estimate of the damage suffered by him. After doing this, he signed the document and sent it to the defendant. It was only after plaintiff definitely refused to accept a settlement on the basis of a total loss of $ 2,090, according to an estimate made for the defendant by one Weiland, that the defendant raised the question of plaintiff's alleged violation of the insurance contract in failing to make proofs of loss within 60 days. In these circumstances, we hardly think the defendant is in a position to successfully urge as a defense that it did not receive the preliminary proofs of loss, the blanks for the execution of which it was required under the law to furnish the insured. Act 168 of 1908; McClelland v. Greenwich...