McPike v. Western Assurance Co.

Citations

• 61 Miss. 37

Syllabus

<p>1. Fire Insurance. Proof of loss. Waiver. A condition in a policy of fire insurance as to making proof of loss, being for the insurance company’s benefit, may be waived expressly or by implication ; and if the company, through its agents, so acts as to induce the assured reasonably to believe that it will not require the proof, it is estopped afterward to insist on the condition.</p> <p>2. Same. Adjuster. Examination of assured. If the company’s adjuster, returning from the scene of the fire, meets the agent of the assured, and inviting him “to fix up about this loss,” subjects him, in the insurance office, to a private examination under oath, provided for in the policy, the jury must decide whether the agent is correct when he testifies that this, and the fact that another loss so “ fixed up” by this adjuster had been paid, induced him to believe that nothing more was required. Insurance Companies v. Sorsby, 60 Miss. 302, distinguished.</p> <p>3. Same. Instructions. Burden of proof. It is error in such a case to instruct the jury to find for the defendant; but the burden of proof is upon the plaintiff to establish that his agent believed that the defendant waived the proof of loss, and that the attendant circumstances warranted this belief.</p> <p>4. Same. Denial of liability. If the adjuster tells the attorney of the insured that the company will not pay the loss because of violation of its conditions and suspicious circumstances attending the fire, this is a waiver of proof of loss.</p> <p>5. Same. Time of making proof. Waiver. A stipulation that the proof of loss shall be furnished “ as soon after as possible,” means within a reasonable time; two mepths after the fire is unreasonable, and the assured cannot ..claim a 'waiver by reason of such a denial of liability then made, without-3 satisfactory explanation of his delay.</p>