Sheehan v. Southern Insurance

Ellison, J. — This action is based on a petition containing two counts, each declaring on an insurance policy issued by defendant. A trial resulted in favor of defendant. Afterwards the plaintiff filed a motion for new trial, which being sustained, defendant excepted to such action of the court, and has brought the case here under section 2246, Revised Statutes, 1889, as amended in Session Acts of 1891, page 70. This amendment permits an appeal from the order granting a new trial, without having to wait, as formerly, for final judgment. The amendment took effect in July, 1891. The trial of this case occurred before that date, and the motion for new trial was'filed before that date, but such motion was heard and determined after the amendment took effect. Plaintiff contends that the amendment does not apply to this appeal since it was not in force when the motion for new trial was filed. We rule the point against plaintiff under the case of Lovell v. Davis (decided at this term) wherein the act was adjudged to be remedial, and that in giving a right of appeal, from the motion for new trial without waiting for judgment, where none had existed before, it did not come within that class of cases or that principle of fundamental law forbidding retroactive or retrospective laws. The only distinction between that case and this is, that in that case the law took effect after the institution of the suit, but before the trial; while in this case, as before stated, it took effect after the motion for new trial was filed, but before it was determined. Such distinction is without any substantial difference, and the reasoning in that case is applicable to this. The court granted the new trial for the reason as stated of record, ‘ 'because of errors in the declarations [355] of law given by the court to the jury, especially defendant’s instructions numbers 14, 15, 16.” Defendant at the close of plaintiff’s case offered a demurrer to the evidence, which was overruled. Defendant excepted and refused to introduce any evidence, and the jury gave it a verdict on the plaintiff’s case in connection with instructions for each party. The instructions named by the court as being erroneous declared.the proofs of loss to be defective. The error in these instructions was a technical one, and is an error against the defendant, for in point of fact there was no proof of loss at all. Copies of the proofs of loss were, after hesitation by the court, admitted in evidence over defendant’s objection, without accounting for the originals. This was manifest error. Lewin v. Dille, 17 Mo. 69; Farmers’ Ins. Co. v. Lonergan, 21 Mo. 46; Carr v. Carr, 36 Mo. 411; Hanover Ins. Co. v. Lewis, 23 Fla. 193. The copies were, however, doubtless admitted because of a showing made by plaintiff at the trial that he did not have the originals, and that defendant’s attorney, and two of its agents who were attending the trial as witnesses, did not have them or know where they were. This was not sufficient. It was the plaintiff’s duty to have notified defendant before trial to produce the original proofs in its possession. It is not laying a proper foundation for secondary evidence to ask of the opposite party for the production of an original paper or document on the moment, which he has not at hand. One of the defendant’s agents attending trial as a witness stated that he had seen the originals some time before at St. Louis; that he did not have them and could not produce them; that he had delivered them to Mr. Yandeventer who wanted to look over them. From all that appears or may be inferred from the evidence, the papers could yet be obtained from Yandeventer, or else their whereabouts ascer [356] tained. From this it will be seen that merely declaring the proofs defective was, if anything, an error against the defendant. There being therefore no proper proof of loss in the case the defendant’s demurrer to the evidence should have been sustained, unless a waiver by defendant was shown. We are of the opinion that there was no evidence in the cause tending to prove a waiver of proofs. The only evidence, which may reasonably be said to bear on the question, consists of letters written by the defendant’s agent and introduced by plaintiff. These letters neither deny nor admit liability. They demand proofs of loss and reject the papers forwarded to them as proofs for certain reasons or specifications of deficiency stated in the letters. Plaintiff contends that by specifying certain objections defendant waived all others. If we grant this, it does not help plaintiff, in the condition we find the case; for some of the reasons given in the letters for rejecting the proofs on account of defects therein, if true, are good, under the law and the policy. They should have been shown to be untrue by the proofs themselves, which, as has been stated, was not done. In other words, granting that, when certain objections to proofs are specified, others not specified will be deemed to be waived; yet this is not a waiver of proof altogether, but only of certain objections which might have been made. The objections which are made, if valid and true, will still defeat the proof. The objections here pertained to the proofs themselves, and their introduction in evidence would have demonstrated the falsity of the objections made, if they were false. Plaintiff then stands here without having made proofs of loss and without having shown a waiver thereof. In consequence he has no case, and should not have been granted a new trial. This renders unnec [357] ■essary the discussion of the alleged errors against plaintiff. The judgment will be reversed and the cause remanded with directions to set aside the order granting a new trial and to enter judgment for defendant on ' the verdict rendered. All concur.