Walker v. German Insurance

The opinion of the court was delivered by Allen, J.: The defense in this case is based solely on the failure of the plaintiff to comply with the provisions of the policy. Counsel contend for defendant in error that inasmuch as the petition avers compliance with the terms of the policy, and neither the petition nor the reply avers any waiver, under the decision in Insurance Co. v. Johnson, 47 Kas. 1, proof of waiver was incompetent. The defendant pleaded especially the provisions of the policy requiring proof of loss and providing for arbitration, and alleged a failure to furnish proofs of loss, and also a refusal to arbitrate. It will be observed that the clause in the policy with reference to arbitration provides that, in case differences shall arise touching any loss or damage, after proof thereof has been received in due form, the matter shall, at the written request of either party, be submitted to impartial arbitrators. The defendant pleaded a demand of arbitration. We think this obviates any question as to proof of loss, and that a demand of arbitration under the policy is a waiver of proofs of loss. This fact having been pleaded by the defendant, it was unnecessary for the plaintiff to aver a waiver. Generally any statement or conduct on the part of the defendant, or its general agent, which would fairly give the plaintiff to understand that formal proofs of loss are unnecessary, will amount to a waiver of such proofs. (Cobb v. Insurance Co., 11 Kas. 97; Badger v. Insurance Co., 49 Wis. 389; Insurance Co. v. Sheets, 26 Gratt. 854; Insurance Co. v. Dougherty, 102 Pa. St. 568; Deitz v. Insurance Co., 33 W. Va. 526; Little v. Insurance Co., 123 Mass. 380.) [730] We think both the pleadings and the evidence show a waiver of proofs of loss. The answer alleges that differences have arisen between the plaintiff and defendant as to the amount of "loss sustained by the plaintiff; that the defendant requested arbitration, and that the plaintiff refused. There are cases holding agreements similar to that contained in this policy, with reference to arbitration of a particular matter, valid. (May, Ins., § 493; Wood, Ins., §456.) The general rule is that an agreement providing for the submission of the whole matter in controversy to arbitration, thereby attempting to oust the courts of their general jurisdiction, is void. (See authorities above cited.) There are also authorities holding provisions like the one under consideration of no effect: Insurance Co. v. Badger, 53 Wis. 283; Wallace v. Insurance Co., 1 McC. 335; Hurst v. Litchfield, 39 N. Y. 377. But this we need not decide. No written demand of arbitration was made, by either party. The defendant, having failed to make a written request for arbitration, is deemed to have waived it. (Insurance Co. v. Badger, supra; Wallace v. Insurance Co., supra; May, Ins., § 493a.) In any view of the case, the defendant had no right to insist on having the plaintiff sign a written submission containing provisions not provided for by the policy, and plaintiff was under no obligation to sign a contract which the evidence shows was prepared by the adjuster. We think there was sufficient evidence to warrant a judgment for the plaintiff; that the demurrer thereto was improperly sustained. The judgment will be reversed, and the cause remanded for a new trial. All the Justices concurring.