McPike v. Western Assurance Co.

Chalmers, J., delivered the opinion of the court. It is admitted that no proof of loss was ever made in this case by the insured, but it is insisted that there was a waiver of it by the insurer, or, what amounts in effect to the same thing, that the acts of the insurer by its agents were of such a character as to induce a reasonable belief upon the part of the insured or his agent that the necessity of making proof of loss was waived. Gillespie, the adjuster of the company, went to the scene of the fire for the purpose of investigating the circumstances and adjusting the loss, but found no one on the premises. Returning through Vicksburg, he encountered Morrow, the agent of the assured, and asked him to go to Chamberlin’s office and “ fix up about this loss.” Moi-row accepted this invitation, went with him to the place named, and there submitted himself to a long examination, his answers to all the questions being written down by Gillespie. After the examination ceased, Morrow, by direction, took the paper before a magistrate, swore to its correctness, appended his signature to it, and returned it to Gillespie. This examination embraced nearly all the facts which, according to the specifications of the policy, were required to be embraced in a formal proof of loss. Gillespie prob■ably understood that he was only engaged in completing his own investigations as adjuster, and that what he was doing had no reference to the required proofs of loss, but Morrow testifies that he thought that what he had done constituted all that his principal or himself was required to do, and that he was led thus to think both by Gillespie’s invitation, to go and “ fix up about this loss,” and by the fact that a short time before Gillespie had in this way “ fixed up ” a loss for him, which had been paid without objection. It is settled by the case of Insurance Companies v. Sorsby, 60 Miss. 302, that the mere sending of an adjuster to the scene of a fire and a full investigation by him constitutes no waiver of proof of loss, and as remarked, it is probable that the adjuster did not intend any waiver here, but that is not the question. The [43] question is whether the agent of the insured, as a man of ordinary intelligence but unlearned in the technicalities of insurance, had anything to warrant him in believing that he had done all that the company would require. The condition as to making proof of loss was wholly for the benefit of the insurers, and not only might they waive it either expressly or impliedly, but if they so acted as to induce the assured reasonably to believe that they would not insist upon it they will be estopped afterward from insisting upon it. Wood on Fire Insurance, § 419, and cases cited. The court below thought that there was nothing in what transpired that tended to show that Morrow was misled, or could fairly claim that he was, and therefore instructed the jury to find for defendants. We think this was error. It seems'to us that the question, as being one not of law, but rather of fact, should have been submitted to the jury. We do not decide that Morrow was misled, nor that, as a man of ordinary intelligence,- he can fairly claim that he was, but because we cannot say that he clearly was not misled or ought not to have been, and because we think it a proper subject for the jury to pass upon, we think it should have been submitted to them. It is for them to say whether in fact he did believe that the defendants had waived the proof of loss and whether the attendant circumstances warranted him in so believing. The burden of establishing both propositions is upon the plaintiff. The adjuster four or five weeks after the interview with Morrow informed the attorney of the insured that the company did not intend to pay the loss, for the reason that its conditions had been violated and because there were suspicious circumstances attending the fire. If this statement had been made within the time during which the assured could have made his proofs of loss it would have been a clear waiver of all objections to the failure to present them, it being well settled that a denial of liability on other grounds is a waiver, but this of course is only true where the time for making the proof has not elapsed; since if the party has already lost all rights under the policy by his laches in this respect he cannot be affected by the subsequent denial of liability. Wood on Fire Insurance, § 419, and cases cited. [44] The policy in this case stipulated that proof of loss should be furnished “as soon after as possible,” which means within a reasonable time. The denial of liability to the attorney occurred more than two months after the fire. In the absence of a more satisfactory explanation of the delay than is furnished by the present record, we think that the delay was unreasonable and that the assured cannot claim a waiver by reason of such denial. We reverse the case because the court declined to allow the jury to pass upon the question of waiver in view of what passed between the adjuster and Morrow. We cannot say that it clearly appears that the latter was not misled and that a finding that he was and had a right to be, would have been so manifestly wrong that it would have been the duty of the court to have set it aside. Swan v. Liverpool Insurance Co., 52 Miss. 704; Whitney v. Cook, 53 Miss. 551; Carson v. Leathers, 57 Miss. 650; Chicago Railroad Co. v. Doyle, 60 Miss. 977. Reversed and remanded.