Erwin v. Springfield Fire & Marine Insurance

24 Mo. App. 145, 1887 Mo. App. LEXIS 163

Opinion

Ellison, J.

This is an action on a policy of insurance covering a stock of millinery goods and some fixtures necessary to said stock. The plaintiff prevailed below and defendant appeals. -

The policy contained, among other conditions, the following: .

“ Persons sustaining loss or damage by fire shall forthwith give notice of said loss, in writing, to the company, and, as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interests therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof, -were used at the time of the loss, when and how the fire originated; and shall also produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor relatéd to the assured), stating that he has examined the circumstances attending the loss, knows the character and cii’cumstances of the assured, and verily believes that the assrired has, without fraud, sustained loss on the property insured, to the amount which such magistrate or notary public shall certify.”

The fire occurred on July 10, 1883, and plaintiff, on July 23, 1883, sent to the defendant a proof of loss, purporting to render a particular account of such loss, as required by the conditions above set out. This proof was offered in evidence and was admitted over the following objections of defendant:

1. Because said paper does not specify the policy under which the claim is made.

2. It does not contain a copy of the written part of the policy under which the claim is made.

3. It does not state the items nor give as particular an account of the loss as the nature of the case will admit, or as the company has the right to require under the terms and conditions of the policy read in evidence.

4. It does not state to whom the specific property belonged at the time of the fire, nor the interest of the insured therein.

5. It does not state whether any, and if any, what other insurance had been made on the same property, nor give copies of written portion of all policies, if any, concerning the same property.

6. It does not specify the time of .the fire by which the property insured was damaged or destroyed.

7. It does not give or state the actual cash value of each specific subject of insurance at the time of the fire, nor does it give or state the actual loss, or damage, for which the claim is made in the aggregate, under each specific subject of insurance, nor does it state the amount of loss or damage claimed from such company under each specific subject of insurance.

8. The certificate of the magistrate attached to said document is incomplete, in that it fails to state that he is or was the nearest magistrate to the place of the fire, and is not related to the assured nor interested in the claim.

The first and second of these objections were properly overruled, as the matter specified in such objections do not appear to be required by the conditions of the policy. Ñor do they appear to enter into any statement of account of loss.

The third objection depends upon the facts and circumstances of each particular case. It may be the account rendered was as particular ■ as possible under the circumstances surrounding plaintiff! at the time. The fire may have left plaintiff without sufficient memoranda for a more specific statement. The fifth objection was not well taken. The proof does state there was other insurance in the Phcenix Company, of Hartford, Connecticut, and it does set out the written portion thereof. It was not necessary, for the proof to proceed further and affirmatively state there was no other insurance than that named. After naming other insurance, as required by the policy, it need not state that was all, for such, would be the presumption so far as concerns the sufficiency of the proof on its face.

As regards the eighth objection, while I am of the opinion that the magistrate or notary must not be of kin to the assured nor interested in the claim, yet it is not necessary to the legality or sufficiency of the proof, that this should appear upon its face.

The fourth and sixth objections were well'taken and for the reasons therein stated the proof should have been rejected.

There is no statement in the first proof as to whom the property belonged, nor the interest of the assured therein ; nor does it state the time of the fire. The conditions of the policy requiring this are reasonable and should be specifically complied with, unless waived by the insurer. Wood on Fire Insurance, sects. 411, 415.

The seventh objection would, like the third, depend much on the facts of each particular case, and we cannot say that it was insufficient.

The second proof of loss was of itself sufficiently specific, and so far substantially covered the conditions of the policy as to make it proper evidence to be submitted to the jury. It cannot reasonably be expected that a proof of loss shall be as accurate and precise in matters of form as a legal pleading. Every proper condition of the policy must, of course, be embodied in the account, and it must be as particular an account as the circumstances of the case will permit. But after all, it is definite, unequivocal information which the insurer asks, together with a com? pliance with conditions designed to protect him from fraud and imposition. These he has a right to demand as a pre-requisite to his liability, but to nothing more. Whether the statement of loss is made aptly or awkwardly, ought not to affect the liability. Unless, then, this second proof was not within the time limited in the policy, it was properly admitted. Taking the date of the fire, July 10, and the date of this proof, December 21, following, with nothing more, it is clear the proof was not presented within the time contemplated by the terms of the policy. This, is practically admitted by plaintiff’s counsel. The question, then, is, has there been a waiver in this case, as to time. It will be noticed that this condition of the policy is not for any specified time. It reads that plaintiff “shall forthwith give notice of said loss, in writing, to the company, and as soon thereafter as possible render a particular account of said loss, etc. ‘As 'soon thereafter as possible’ cannot mean instantly or directly, for it might be impossible to do the act instantly. Here the time is indefinite and unlimited and must mean that the particular account of the loss should be made as soon as it could be under the circumstances, or within a reasonable time, or as soon as practicable.” Palmer v. Ins. Co., 44 Wis. 201. If the time limited was a specified number of days, and these had elapsed by the inexcusable laches of the assured, it would defeat the policy, aqd it would seem upon principle that, in order to revive the policy, some new consid eration should move between the parties. As was said by Sharswood, J., in Beatty v. Ins. Co., 66 Pa. St. 9, “To constitute a waiver, there should be shown some official act or declaration by the company, during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters did not mean to insist upon it. * * * After the thirty days had expired without any statement, nothing but the express agreement of the company could renew or revivify the contract.” The clear reason for this is, that within the time limited the company’s conduct may be such as to lead the assured to believe no compliance as to time would be required or deemed material, and but for such conduct he would have rendered full compliance. But if the’specified time has elapsed without the fault of the company, its subsequent acts, short of an express agreement, would seem to be of no effect, for they can work no possible harm to the assured, w'hohas already lost his right. I refer to this distinction that we may be fully understood as to our views of this case. As before stated, the time limited in this policy is a reasonable time, and what is a reasonable time depends largely upon the circumstances and surroundings of each particular case. No one is better qualified to judge of what would be a reasonable time in the particular case than the parties concerned, and if the one to be charged directly, or by his conduct, shows that he does not deem the time expired and makes no statement or suggestion to that effect in his correspondence with the other, he should not be heard to do so at the trial. In this case the letters in evidence show that the defendant ’ s agent first wrote plaintiff on August 1, making specific objections as to the first proof of loss, but. none as to time. He next wrote her on August 14, still asserting the proof was not specific enough, but not making any complaint as to time ; on the contrary promising prompt attention Jo the claim whenever his letter of first of August was complied with. \He next ad «dresses plaintiff on October 23, makes no reference to time, but says lie cannot take further steps in the matter so long as she declines to furnish proof as required in his letter of August 1. And finally he writes her January 5, 1884, in response to her sending the second proof of loss, dated December 21, in which he states objections as to the character of the proof not being up to the requirements of the policy, but makes no objection as to time. These letters, when considered together, show, without any reasonable doubt, that defendant did not consider plaintiff’s proof insufficient in point of time. We may well go further and say that they show “during the currency ” of a reasonable time, that defendant did not intend to stand on that point, or demand a fulfillment of that condition. It is true plaintiff at one time refused to make further proof after her first was sent in, but defendant, nevertheless, continued to correspond with her until she did furnish further proof; and it is also true that defendant stated in some of his letters, enumerating specific objections to the proof, that no conditions of the policy were intended to be waived; yet the statement is contrary to the act. Defendant’s actual waiver cannot be affected by his statement. . He simply states he is not doing, that which he clearly is doing. Phillips v. Ins. Co., 14 Mo. 220, 236.

We find no substantial objection to the action of the court on the question of instructions, and have only to consider whether the admission in evidence of the first proof of loss was such an error as will justify us in reversing the judgment and remanding the cause. The statute, section 3775, says we shall not reverse the judgment of any court unless we shall believe that error was committed materially affecting the merits of the action. The second proof being in all respects a sufficient compliance with the policy, we are not able to perceive any harm resulting to defendant by the admission of the first proof.

Defendant’s case was forcibly presented attheargu ment, but the fact remains, that the matter in evidence shows a waiver of that which otherwise would have en* titled it to the judgment. Affirmed.

All concur.