Newark Fire Ins. Co. v. McMullen

Anderson, J., delivered the opinion of the court. Appellee, F. T. McMullen, brought this action in the circuit court of Newton county, against appellant, Newark Fire Insurance Company, on a fire insurance policy issued by the latter to the former, to recover the sum of one thousand dollars, the alleged loss suffered by appellee in the destruction of his residence covered by such policy, by fire, and recovered a judgment in the sum of one thousand dollars, from which appellant prosecutes this appeal. The trial was had on the pleadings and evidence, resulting in a verdict and judgment for appellee for the amount sued for. The question principally argued, and the only one we deem of sufficient importance to discuss, is whether appellee was barred from recovery under the policy of insurance because he failed either to give notice of the loss or make proof thereof as required by the provisions of the policy. The policy provided, in substance, that, in case of damage or destruction of the property insured by fire, appellee should give immediate notice thereof to appellant, in writing, and within sixty days after the loss, unless the time was extended, in writing, make proof thereof, in writing, signed and sworn to by appellee. The evidence shows, without conflict, that appellee neither gave notice in writing of the loss, nor made proof thereof as required by the policy. The question is whether or not those provisions of the policy were waived by appellant. If appellant waived the notice of loss provided for by the policy, it also waived proof of loss as therein provided, in failing to comply with section 2593, Code of 1906 (Section '5057, Hemingway’s Code), which *377 provides that, in case of destruction or damage of property by fire, where the same is insured against fire, it shall be the duty of the insurance company liable for such loss, within a reasonable time after receiving notice thereof, to furnish to the insured proper blanks upon which to make the required proof of such loss, with full directions as to what proof is required to secure the payment of the policy, and, if the insurance company fails to do so, then the failure of the insured to make proper proof of loss prior to suit shall be no defense to the action. It is undisputed in the evidence that appellant failed to send appellee proof of loss blanks with instructions. Therefore the question resolves itself into whether there was sufficient evidence to go to the jury on the issue of waiver of the notice of loss prescribed by the policy. The evidence bearing on that question tended to establish the following facts: That J. D. McKnight was the agent of appellant in this state; that he had authority to inspect risks and adjust losses; that appellant, with knowledge of the particular loss here involved, secured the services of .an adjustment company in New Orleans to adjust the loss; that McKnight also had notice of the loss, having been informed thereof verbally by appellee and by Graham, the local soliciting agent of appellant; that McKnight, acting for appellant, informed appellee that the adjustment of the loss had been referred to an adjustment agency in New Orleans, which agency, in a short time, would have a representative on the ground to make the adjustment; that McKnight, representing appellant, stated to appellee that appellant’s local soliciting agent, Graham, would furnish appellee with blanks on which to make proof of the loss, and give him the necessary instructions fo'r that purpose. The record in the case also shows that the rule was invoked during the trial, and that McKnight remained in the courtroom. At the close of appellee’s evidence appellant offered McKnight as a witness, to which appellee objected because McKnight had not been under the rule with the *378 other witnesses. In response to that objection, appellant’s attorney stated to the court that the rulé did not apply to McKnight; that he was the company itself; that he was the defendant in the case—whereupon the court permitted McKnight to go upon the witness stand. It is true that in his testimony McKnight claimed that he was only a special agent of appellant, and had no authority to waive the stipulations in the policy with reference to notice and proof of loss; but we think the evidence was sufficient to go to the jury on that question. Where the insurance company receives an informal notice of the loss, one not provided for by the policy, and by reason of such notice sends out an agent to adjust the loss, and also through its authorized agent informs the insured of the coming of the adjusting agent, and that still another agent, the local soliciting agent of the company, will furnish the necessary blanks on which to make proof of the loss, there is a waiver of the requirement of the policy that immediate notice of loss, in writing, shall be given the company, and the company, is thereby es-topped to set up that as a defense. 37 C. J., p. 30, section 690, and note; Massachusetts Protective Association v. Cranford, 102 So. 171, 137 Miss. 876. The purpose of a stipulation of this character is to enable the company to properly take steps to investigate the loss with a view of protecting its interest. If that exact end is accomplished by a method not provided for in the policy, the company is not prejudiced by a failure to follow the exact method prescribed in the policy. In other words, if the company acts on such notice, if it takes the same action that it would have taken if the policy had been complied with in the giving of the notice, and by such action the insured is led to believe no further or different notice will be required, we think the company is estopped to defend on the ground that the proper notice was not given. When McKnight told appellee that appellant knew of the loss and had arranged with an adjustment agency in New Orleans to adjust the loss, and that appellant’s *379 local agent, Graham, would furnish the necessary blanks for making proof, appellee had a right to take no further action until such blanks were furnished him; he had the right to believe that no further notice of loss would be expected or required by the company. It follows from these views that the trial court committed no error in refusing to direct a verdict for appellant. Affirmed.