Spring Garden Insurance Co. v. Whayland

This action was instituted in the Circuit Court for Wicomico County to recover on a policy of insurance issued by the appellant company the amount of a loss sustained by the appellee by a fire which damaged and destroyed some of the personal property described in the policy. There are three bills of exception in the record. Two relate to the admissibility of evidence and the third to the rulings of the Court on the several prayers for instructions to the jury. The policy was written on the fifth day of August, 1904-for one year.

It appears that on the night of the 27th day of August, 1904, as stated in the record at one place, or September 27th, as stated at other places in the record, a fire occurred and destroyed some and damaged some of the household furniture covered by the policy. On the following day the agents of the insurance company were informed of the fire and one of them went to the scene and examined the damaged articles. He instructed the assured to make out a detailed list of the articles which had been destroyed and of those ⁷⁰⁰ which had been-damaged as well as a separate list of those which had not-been injured. This direction was complied with at once and the husband of the assured' delivered to the insurer’s agents an'itemized list of the damaged and destroyed articles and a separate list of the uninjured furniture.

The last-named list was returned by the agents to the assured and the other was sent by them to the home office of the company. Some question was raised by the agents of the company as to the origin of the fire; but no objection was made to the form of the proof of loss as evidenced by the list of damaged and destroyed articles. Nothing further seems to have been done for some little while. The assured then employed an attorney to press the matter.

On October 24th the agents wrote to the attorney informing him that the company required a strict compliance with the conditions of the policy, but that letter the attorney testified had never been received by him. -Suit was finally instituted and the trial resulted in a verdict for the plaintiff. From the judgment entered thereon this appeal was taken by the insurance company. The questions before us are, was the trial Court right in admitting in evidence a duplicate of the list of damaged and destroyed articles; and secondly, was there sufficient evidence to go to the jury of a waiver by the company of the provision of the policy which required a preliminary proof of loss to be furnished within sixty days after the fire ? The list of damaged and destroyed articles was made out by one Turner in the presence of the plaintiff and her daughter.

Though the plaintiff requested the agents to return it to her they declined to do so as it was in the possession of the company. The duplicate was then offered in evidence and'was admitted to show what articles had been damaged and destroyed and the testimony of Turner tended to show the value of those articles. To entitle the plaintiff to recover it was necessary not only to prove a loss by fire, but it was also necessary to prove what articles were destroyed or damaged and their value. The duplicate list and the testimony objected to in the first and second bills of exception were admissible to prove those facts of the plaintiff’s case. ⁷⁰¹ The remaining question relates to the legal sufficiency of the evidence tending to prove the alleged waiver of the preliminary proof of loss.

The policy contains the usual provisions requiring the assured to give to the company notice that a fire had occurred and to furnish under oath within sixty days after the fire a proof of loss which shall set forth, among other things, the cash value of each article damaged or destroyed and the amount of loss thereon, and the knowledge and belief of the insured as to the time and origin of the fire. These preliminary proofs of loss are required for the benefit of the insurer and for his or its benefit exclusively in order that the nature, extent and character of the loss may be ascertained. Since this is the case there is no reason why the insurer may not waive a compliance with the provision thus inserted for his or its sole benefit. Indeed, the adjudged cases are numerous in which the proposition just stated has been announced, and applied.

It is not necessary that an express agreement to waive the preliminary proof should be shown. Such a waiver may be inferred from the acts and conduct of the company if those acts and that conduct are inconsistent with an intention to insist upon a strict