Sidebotham v. Merchants Fire Ass'n

Fullerton, J. The appellant is a mutual fire insurance company, organized under the laws of this state. On March 11, 1903, it issued its policy of insurance to the, appellant covering a certain stock of merchandise, and certain furniture and fixtures owned by him, insuring him in a sum not exceeding $800, against loss by fire, for a term of one year from and after that date. The property was destroyed by fire within the term covered by the policy, and on the refusal of the company to pay the amount of the loss, this action was brought to recover the sama In his complaint the respondent alleged that he had complied with all the conditions of the policy save that requiring him to furnish sworn proofs of loss, and that the company had waived this requirement by [437] denying any liability under tbe policy and refusing to pay in any event Issue was taken on tbe allegations of tbe complaint, and a trial bad, wbieb resulted in a verdict and judgment for tbe respondent. Tbe insurance company appeals. Tbe single question raised and discussed by counsel for appellant is tbe sufficiency of tbe evidence to justify tbe finding of tbe jury tbat tbe appellant bad waived tbe provision of tbe policy requiring tbe respondent to make sworn proofs of loss. On tbis question, while it was somewhat meager, we think there was not a total want of substantial evidence. It was shown tbat, on tbe day after tbe fire occurred, tbe respondent called in person at tbe insurance company’s office, and notified its officers of tbe fire, and bis losses thereunder, giving them at tbe same time all tbe information be possessed as to tbe origin of tbe fire; in fact, be was subjected to a long cross-examination by tbe officer of tbe company in charge concerning all of these matters. At tbe conclusion of tbe interview, tbe appellant inquired of tbe officer what was necessary to be done in order to have bis loss adjusted, and was informed tbat be would be required to furnish invoices from all of tbe wholesale dealers with whom be bad dealt, showing tbe amount of goods purchased by him while in business, and submit for examination such of bis books as would show tbe amount of goods disposed of during the same period. Tbe interview then ended, and tbe respondent after some time procured tbe invoices required and submitted them with bis books to tbe insurance company for examination. Later on a representative of tbe company was sent out to investigate tbe cause of tbe fire. Following tbis there were a number of interviews between tbe respondent and tbe company’s officer, during which tbe matters were again gone over. Finally tbe respondent inquired directly what tbe company proposed to do about adjusting and settling tbe loss, and was told, “Hotbing at all.” Inquiring why, be was answered tbat be bad not complied [438] with his contract. Inquiring in what particular he had failed, he was told that it was not the business of the company to inform him. Finally, just before the time expired in which he was required to furnish proofs of loss, he called again at the insurance office, and finding representative of the company in, left a note saying that if the matter was not forthwith' settled he would institute suit on the policy. On the next day ho received in reply to this a letter from the company in the following words: “If you intend or desire to> make any claim for loss against the company, the manner of proceeding and presenting said claim are plainly printed in your contract, and we respectfully refer you to them.” This ended the negotiations between the parties, and soon thereafter this action was brought. The company then, for the first time, made known to the respondent the 'precise ground on which it rested its claim of nonliability. The foregoing, while but a brief outline of the testimony, shows conclusively that the respondent was misled by the acts of the company’s officer into the belief that he had done all that the company required of him in the way of furnishing proofs of loss. And’what is more to' the point, it shows that the company’s officer knew he was being deceived in that respect. The company, therefore, owed him the duty of informing him directly in what manner he had failed to comply with his contract, and failing in that, it must he held to have waived the requirement. It is argued, however, that the aptpellant did not owe the respondent the duty of informing him how to proceed under his policy in order to make a valid claim of loss. This would he true, undoubtedly, had the appellant dealt with the respondent at arms length from the start, but it did not do this. It undertook to inform him what it was necessary to do> in order to have his loss adjusted, and having undertaken to so inform him, it owed him the duty of informing him correctly. But it is said that the [439] letter above quoted did inform him in what particular the company claimed that he had not complied with his contract. But plainly this is not so. Its want of frankness would be apparent did we not know what had preceded it, but in the light of that, it looks like an intentional effort to deceive. The judgment is right, and should be affirmed. It is so ordered. Mount, O. J., Boot, Crow, Dunbar, Hadley, and Bud-kin, JJ.; concur.