Albers v. Phoenix Insurance

68 Mo. App. 543

• Court: Missouri Court of Appeals
• Decided: February 1, 1897
• Status: Published

Opinion

Ellison, J.

This action is on a policy of fire insurance. The finding, under the instructions of the court below, was for defendant. Plaintiff afterward filed a motion for new tidal, which the court sustained. The defendant thereupon appealed from the order granting the new trial.

ter: delegation of a°cncy' The policy required proofs of loss to be made within thirty days after the fire. No proofs of loss were made in this ease, but plaintiff contends there was a waiver of such proofs. The only question of waiver arises on the action of one Welch, who appeared at the place of the loss within the thirty days required for proofs and entered into negotiations concerning the loss, and stated that the loss would not be paid on account oi the title to the property insured not being as it was stated in the policy. It was not shown that this person assuming to so act was in truth the agent of the company. At best he was only shown to be an agent for the company’s adjusting agent. This is not sufficient to bind the company. An adjusting agent has no power to -delegate his authority. His position is one of personal trust and confidence reposed in him by his principal, and he can not transfer his relation to a third party. Waldman v. Ins. Co., 91 Ala. 170; Ruthven v. Ins. Co. (S. C., Iowa 1894); McClure v. Ins. Co., 4 Mo. App. 148. If it had been shown-that he customarily delegated his authority to others with the consent of the company, it would have been a different case.

for proofs: adjuster. 2. Conceding it to have been shown that one Ira Welch (not the Welch before referred to) who also was shown to have taken some part in the matter of the loss was the defendant’s adjusting agent, yet he was not shown to have had. anything to do with the loss until after the time limited for proofs of loss had expired. In such case his action could not have had anything to do with the failure to furnish the proofs within the required time. Cohn v. Ins. Co., 62 Mo. App. 271.

It follows from the foregoing that plaintiff failed to make a case against defendant, and that the court’s peremptory direction to find for defendant was right and its subsequent granting of a new trial was wrong.

The order granting new trial will be reversed, and the cause remanded with directions to enter judgment, for defendant.

All concur.