Fulton v. Phoenix Insurance

Gill, J. On November 15, 1887, the defendant issued its policy of insurance on a farm dwelling and contents belonging to plaintiff Fulton, loss if any payable to the trustee of the Phoenix Mutual Life Insurance Company as its interest as mortgagee might appear. On September 11, 1891, and during the life of the policy, the building and contents were destroyed by fire. Defendant failing to pay the insurance, this action was brought, resulting in a verdict and judgment for plaintiffs, and defendant appealed. I. The defense relied upon was the failure to make proof of loss within thirty days provided in the policy. That such proofs were not made within the time stipulated in the policy was admitted, but plaintiffs relied on a waiver thereof by defendant. Now the petition declared plaintiffs’ compliance with all the requirements and conditions of the policy; but at the [463] trial the court permitted plaintiffs, over defendant’s objection, to introduce evidence tending to prove a waiver of the condition to furnish proofs of loss within thirty days. Defendant objected to such evidence on the alleged ground that no waiver had been pleaded. In answer to this objection it is only necessary to repeat, without citing the numerous cases, what'has been so often decided by the courts of this state, that the allegation in the petition to the effect that plaintiff had complied with all the conditions of said policy upon his part, is sufficient to let in proof of a waiver of such condition as to furnishing the proofs of loss. There was, too, in this case abundant evidence to justify the court in submitting the question of waiver to the jury. Immediately after the fire, plaintiff Fulton (who lived it seems about twenty miles from the agency that issued the policy) wrote a letter addressed to the former agent, Stephens, who had written the policy, informing him of the fire, and asking for instructions as to how he, Fulton, should proceed, etc. Stephens forthwith turned over Fulton’s letter to Spencer, his successor, at Linneus. Spencer thereupon wrote to Burch, the general agent at Chicago, informing him of the particulars of the loss. This general agent replied to Spencer promising to have the adjuster come upon the ground, and settle the loss. Whereupon Spencer, the local agent, under date of September 19 (only eight days after the fire), wrote the following to plaintiff Fulton: “D. W. Fulton, Esq., Neio Boston, Mo.: “Deas Sib: — Mr. Ceo. W. Stephens, Sr., of this place reported your loss under policy number 1184. This day I received a letter from the company stating their Mr. Hamlin would call and settle with you. ‘ ‘Eespectfully yours, “E. H. Spencek.” [464] Shortly thereafter (about October 1) the defendant’s adjuster did appear upon the scene, and while unable at that time to see Fulton he yet saw Stephens, who represented-the Mutual Insurance Company, the other plaintiff and beneficiary in the mortgage, and said to Stephens that he intended to settle or adjust the loss, and, too, informed Stephens that he would send the company’s draft in payment thereof, payable to both Pulton and said mortgagee to whom the loss was made payable. And even as late as October 8 (only three days before the expiration of the thirty days within which the proofs of loss were by the terms of the policy to be furnished) the general manager or adjuster wrote to Pulton acknowledging the receipt of a letter of inquiry of date September 28, and promised to have the matter attended to. Now, was not all this reasonably sufficient to induce these plaintiffs, while acting as ordinarily prudent men, to believe that the defendant company would not require the formal proofs of loss called for by the policy? And if such conduct on defendant’s part had that effect, and the plaintiffs, relying thereon and induced thereby, permitted. the time to elapse within which such proofs should have been made, then the company is precluded from insisting on such proofs after the time had passed. Loeb v. Ins. Co., 99 Mo. 50; Yale v. Ins. Co., 33 Mo. App. 664, and authorities cited. It seems that after the expiration of the thirty days, within which the proof of loss was required by the terms of the policy, defendant refusing to settle the loss, plaintiff Pulton did make out and left with defendant a formal proof of loss. To the introduction of this proof in evidence defendant objected, and now insists that it was error to admit said paper. I am inclined to regard this as error, in that the paper was wholly useless. Making proof sixty days after the loss did not show [465] compliance with the stipulations of the contract of insurance. Yet admitting a waiver to have been shown, the introduction of the delayed proof of loss was to say the most only a harmless error. "We have read and considered the instructions given, and we regard them as a fair presentation of the law of the case. The judgment is affirmed. All concur.