Liverpool, London & Globe Insurance v. Sorsby ex rel. Chiles

Campbell, C. J., delivered the opinion of the court. These three cases were argued and submitted together, and have been thus considered. In each there was a special plea in bar denying the title of both the nominal plaintiff and the usee, because of an alleged transfer by Sorsby of the policy of insurance. This plea was replied to, and the replication was demurred to, and the demurrer was overruled, and the defendant pleaded a general denial of the declaration. As the matter of the special plea was available under the general issue, the appellants were not prejudiced by the overruling of the demurrer to the replication. Green v. McCarroll, 24 Miss. 427. On the trial, the appellants did not defend on the ground that the title of the policies was not in the plaintiff, but on other grounds. They cannot now successfully complain of the action on the demurrer to the replication to the special plea. The Liverpool, London and Globe Insurance Company denied its liability only on the ground of the failure of the insured to furnish it “ proofs of loss,” as required by the policy. [313] Its receipt from the insured of what he submitted as proofs of loss, and its failure to notify him of any objection to them, was a waiver of all defects in them. Wood on Fire Ins. 716. The defence made on the trial by the Hanover Fire Insurance Company was the failure of the insured to make the required proofs of loss. The facts are, that on the 18th of January, 1881, the insured forwarded by mail to the general agent of the company, as “ proofs of loss,” certain papers. They reached the agent, who promptly wrote to the insured, calling his attention to their insufficiency, and referring him to the conditions of his policy as indicating the proofs required. The insured did nothing more. The proofs of loss sent forward by the insured were fatally defective. It is claimed that the defects were waived by the insurer. The facts relied on to sustain this claim are that the adjusters of the insurer proceeded to the place of the fire, examined into the circumstances of the loss, examined the insured under oath in pursuance of a provision in the policy, and offered to settle with him on the basis of a loss to the amount of $10,000. There was nothing in this to dispense with the required proofs of loss, nor did' the insured so understand. He was not misled in any way by what occurred, and did not consider that he was relieved from his obligation to make the proofs of loss which the policy stipulated for. It was after all this that he prepared and sent forward his proofs of loss, which were pronounced defective by the general agent of the company. On being notified of this, it devolved on him to make such proofs of loss -as the policy required ; and having failed to do it, no recovery can be had on the policy. It is not true that investigation of the circumstances of a loss, and an effort to agree with the insured as to the amount of his loss, will of itself constitute a waiver of proofs of loss. The company is not to be prejudiced in its defence because its agent promptly went to the scene of the fire, and pursued every allowable method of investigation of the loss, and tried ineffectually to come to an understanding with the insured. This would be to punish for an effort to perform duty. [314] The Home Insurance Company defended because of insufficient proofs of loss, and because of other insurance without its consent indorsed on its policy. It had waived all objection to the proofs of loss by receiving them without objecting to them, and denying its liability on the other ground of defence stated. The policy it issued contained a condition in these words, viz.: “If the assured shall have, or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon * * * this policy shall be void.” The policy issued by this company bears date the ninth day of October, 1880. On the 25th of October, 1880, the Hanover Insurance Company issued to the insured a policy on the same property for $3,700, without the consent of the Home Insurance Company indorsed, as provided. The insured claims that the requirement of this consent was waived by the fact that, when he made his application for insurance by the Home Insurance Company, he told Bracey, the agent, that he intended to take out a policy for $3,700 in some other company, to which Bracey consented ; and that he afterwards told Bracey he had taken out the policy in the Hanover Fire Insurance Company, and Bracey said it was all right. Bracey was a mere solicitor of risks for the insurers, at Terry, and had no authority, except to forward to the managers at Atlanta, Georgia, applications for risks, for their approval ; and if the risk was taken and a policy was sent to him, to deliver it to the insured and collect the premium. It was not within his real or apparent authority to make contracts for the company. He was not authorized to issue policies, or alter the terms of those issued by the company. His information of Sorsby’s purpose to obtain other insurance was not imputable to the company, and his express consent to it did not in any way affect the company. The announcement by Sorsby, of his purpose to obtain other insurance, related to the future. He might or might not do so. It was a proper [315] assumption that, if he should cany into effect Ms declared purpose, be would conform to the requirements of the policy of the Home Insurance company. Sorsby knew the sort of agent he was dealing with. The circumstances of the transaction fully admonished him of the limited nature of the power of Bracey as the representative of the company. The policy he obtained from the Hanover Company was issued sixteen days after that issued by the Home. The policy issued by the Home expressly declared that its written consent indorsed thereon was necessary to prevent a forfeiture by other insurance on the same property, and plainly informed the insured that no agent or subagent could vary the contract. It is incredible that Sorsby was misled into the belief that his declaration to Bracey of his purpose to effect other insurance amounted to a waiver of the condition in the policy issued by the Home, and, if he was so misled, it was his misfortune, for there was nothing in the circumstances to produce that effect. The policy issued by the Home Insurance Company was avoided by the subsequent insurance on the same property, without the consent of the insurers. There is no error in the record of the case of the Liverpool, London and Globe Insurance Company, and the judgment in that case is affirmed. The judgments in the other two cases are reversed, and the cases remanded for a new tidal.