Coffman v. Niagara Fire Insurance

Ellison, J. — This action is based on a policy of insurance covering property afterwards totally destroyed by fire. The plaintiff’s case depends (as appears from the record) not so much on a compliance [650] with the terms of the policy on his part, as on a waiver of these terms and conditions by defendant. We are of the opinion that sufficient appears to-show a waiver of immediate written notice of loss as required by the policy; since verbal notice was given to the local agent who communicated it to the defendant company which seems, from other evidence in the cause, to have acted upon such notice without complaint. There was "evidence showing the fact that proofs of loss were given, but whether these proofs were sufficient in legal substance does not -appear. There was-evidence tending to show a waiver of defects except that the proof was made by an agent and not by plaintiff. The court then, against the repeated protest of defendant, permitted testimony to be introduced showing the contents of these proofs, without requiring a proper accounting for the originals. No proper notice to produce the originals was given, and so the court ruled, but nevertheless allowed the contents to be shown by oral testimony. The defendant then asked to have such testimony stricken out, which request was overruled. We must conclude from this that the-trial court attached weight and importance to such evidence and that it had its influence, in the finding (there being no jury). The testimony was improper and should have been excluded. Sheehan v. Ins. Co., 53 Mo. App. 351. The judgment will be reversed and the cause remanded. All concur.