As Affected by Acts of Adjuster.

after investigation, to settle and arrange the matter, waives the furnishing of proofs of loss. Smith v. Home Ins. Co., 47 Hun, 30: 14 N. Y. S. Rep. 106.

175.- An insurance adjuster who, although not a general agent for the purpose of finally settling losses, is expected by the company to carry blanks for the purpose of preparing final proofs, has

169.- A requirement in an insurance policy, that sworn proofs of loss be fur-authority to extend the time within which nished to the company, is not complied with by the making of a statement of the property lost and its value, to the adjuster at his request. * Knudson v. Hekla F. Ins. Co., 75 Wis. 198; 19 Ins. L. J. 235; 43 N. W. Rep. 954.

such proofs shall be made formally to the company, especially after receiving from the insured a complete statement of the items, although informally made. *Searle v. Dwelling House Ins. Co., 152 Mass. 263; 25 N. East. Rep. 290.

170.- An offer by a general agent and 176. Misrepresentations and decepadjuster of insurance, to advise the com- tion of an insurance adjuster as to the pany to pay a certain sum if the assured law governing the case, by which he inwill settle for that amount, is not a wai-duces an insured to settle for less than ver of proofs of loss, if such offer is re- the amount of the policy, is sufficient jected by the assured. Id. ground for setting the settlement aside. *Berry v. American C. Ins. Co., 132 N. Y. 49; 21 Ins. L. J. 455; 30 N. East. Rep. 254; affi'g, 30 N. Y. S. Rep. 53; 8 N. Y. Supp. 762.

by an adjuster to whom proofs of loss were furnished while he was representing the insurer on the ground immediately after the fire, and his notification to the

171. The failure of an insurance company to object, within a reasonable time, to proofs of loss taken by its duly authorized adjuster, who has expressed satisfaction with the same and promised payment 177.- The absolute refusal of payment of the loss, precludes it from thereafter objecting that they are insufficient. *German Ins. Co. v. Gray, 8 L. R. A. 70; 43 Kan. 497; 23 Pac. Rep. 637. 172.- An insurance company is estop-insured that he would have to collect ped from denying the authority of its accredited representative and adjuster as to acts done within the apparent scope of his powers, when no limitation upon such authority was communicated to the assured. * California Ins. Co. v. Gracey, 15 Colo. 70; 20 Ins. L. J. 28; 24 Pac. Rep. 577.

through the courts, is the refusal of the company and constitutes a waiver of proof of loss.

*East Texas F. Ins. Co. v. Brown, 82 Tex. 631; 18 S. W. Rep. 713.

178.- Objections to the timeliness and sufficiency of the preliminary proofs of loss are waived, where, after proofs are furnished, the adjuster visits the premises and submits an estimate of the cost of rebuilding, without making any objection on the ground that the notice was not timely or was insufficient. *Capital City Ins. Co. v. Caldwell, 10 So. Rep. 355 (Ala.)

173.- Notice by an insurance company to an assured that its adjuster would have ample power, indicated in a letter, to enter into a compromise agreement, makes it immaterial, so far as his rights are concerned, to what extent the power of the adjuster was circumscribed by private in- 179.- Notice and proofs of loss restruction. *Millers' Nat. Ins. Co. v. Kin-quired by a policy of fire insurance are not neard, 20 Ins. L. J. 223; 26 N. East. Rep. waived by any acts or declarations of an 368; 136 Ill. 199; aff'g, 35 Ill. App. 105. adjuster having and claiming no author174.— An insurance company whose ity from the company, although the comadjuster sent to investigate the circum-pany subsequently assents to his acts. stances of the fire and afterwards ap-*Mitchell v. Minnesota F. Asso., 51 N. W. pointed to adjust the loss, has taken a Rep. 608; 21 Ins. L. J. 420 (Minn.) statement which was sent to and acted 180.- Notice limiting the authority of upon by it by calling for further proofs an adjuster of an insurance company is as to value, waives by such action any of no effect as to persons who, before refurther proofs of loss. * Graves v. Mer-ceipt of the notice, relied and acted upon chants' & B. Ins. Co., 49 N. W. Rep. 65 the belief that he had the general author(Iowa.) ity possessed by insurance adjusters.

Questions for the Court and Jury.

*Gristock v. Royal Ins. Co., 84 Mich. 161; diligence in furnishing notice and proofs 47 N. W. Rep. 549. is a question of law. Knickerbocker Ins. Co. v. Gould, 80 Ill. 388.

186.- Whether proofs of loss have been actually furnished or given is a question of fact for the jury; whether they are sufficient is for the court. Hum

181.- Acts and conversation of an adjuster of a fire insurance company, soon after the fire, which are sufficient to induce an honest belief on the part of the assured as a reasonable man that the proofs and the certificates then being fur-boldt Fire Ins. Co. v. Mears, 11 Ins. L. J. nished are all that are required by the company, will constitute a waiver of formal proof of loss on the part of the company, where the assured has in good faith acted upon such belief until too late, under the policy, to furnish formal proofs. Id.

847 (Pa.)

187. Question for the jury. The jury must determine from the evidence the degree of particularity in the account of the loss sent to the insurance company the nature of the case admitted of. Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350. See No. 36.

182.- Proofs of loss are waived by an agreement upon the amount, made by an 188.- Papers put in evidence as imadjuster having general authority to ad- porting a contract to waive preliminary just the loss, and the subsequent assur-proofs are to be interpreted by the court; ance of the local agent of the insurance but when put in simply as evidence, with company that no further proofs were re- other testimony, the jury must decide if quired, when any limitations upon the there is a waiver. Davis, Hackett & Co. adjuster's authority were not made v. Western Mass. Ins. Co., 8 R. I. 277. known to the assured until after the expiration of the time for making proofs. *Gristock v. Royal Ins. Co., 49 N. W. Rep. 634; 87 Mich. 428.

182a. When an adjuster is sent in response to a postal card notice of a fire, and makes inquiries of insured's wife, and leaves word that he would pay the loss, it operates as a waiver of the notice of loss and affidavit required by the Iowa statute. *Harris v. Phonix Ins. Co., 52 N. W. Rep. 128 (Iowa).

182b.- Refusal by an adjuster to receive proofs and his statement that they are not required operate as a waiver of them. *Young v. Ohio Farmers' Ins. Co., 52 N. W. Rep. 454 (Mich.)

189.- The jury may take to its room the sworn statement of losses by plaintiff, being documentary evidence within the meaning of the Practice Act. Clark v. Phoenix Ins. Co., 36 Cal. 168.

190. The fact of furnishing proofs of loss and whether furnished in time, are questions for the jury; their sufficiency is for the court. Citizens' Fire Ins. Co. v.

Doll, 35 Md. 89.

191. If there be any evidence from which a waiver of proof may be inferred it should be left to the jury. Farmers' Ins. Co. v. Taylor, 73 Pa. 342.

192.- The question of due diligence in furnishing of proofs is proper to be submitted to the jury. Continental Ins. Co.

183.- Cross references to cases relating v. Lippold, 4 Ins. L. J. 430; 3 Neb. 391. to adjuster.

Section fifteen.

Subd. I. Notice of loss. Nos. 85, 87. Section seventeen. Appraisal. No. 83. Section eighteen. Payment of loss. Nos. 43 et seq., 76.

Section twenty-one. 31 et seq., 62.

Section twenty-four. 113a.

Limitation.

Nos.

193. It is a question for a jury to determine whether delay in furnishing proofs is unreasonable and whether they have been furnished "as soon as possible" after a fire. O'Brien v. Phonix Ins. Co., 76 N. Y. 459.

194.- When policy requires furnishing of proofs of loss "as soon as possible," Waiver. Nos. 42a, reasonable diligence is all that is required, and this is a question for jury. Brink v. Hanover Fire Ins. Co., 80 N. Y. 108.

184. Question for court. The sufficiency of the preliminary proofs of loss is a question for the court. Commonwealth Ins. Co, v. Sennett, 41 Pa. 161.

195.- Policy required that proofs of loss should be made and forwarded to 185.- Where facts are undisputed due company as soon as possible after the

Evidence and Procedure in Action.

happening of the fire by which loss occurred. The fact was that proofs thus required were not furnished until nearly three months after the fire. There was some evidence explanatory of the delay. Held, that without such evidence lapse of three months would be too late, but that with it the question as one of reasonable time was proper to be submitted to and determined by the jury. Home Ins. Co. v. Davis, 10 Ins. L. J. 754; 98 Pa. 280.

Ins. Co. v. Hazen, 1 Cent. Rep. 631; 110
Pa. 530; Swan v. Liv. Lond. & Globe
Ins. Co., 52 Miss. 704.

201.- Such proofs may be waived by the underwriter; and waiver is a question for the jury. Nickerson v. Nickerson, 5 N. Eng. Rep. 798; 12 Atl. Rep. 880; 80 Me. 100.

202.- Whether or not an account of loss has been sent in by the assured to the company "as soon as possible" as required by the policy is a question of fact to be decided by the jury. * Western Assurance Co. v. Studebaker, 124 Ind. 176.

196. The question whether insured did or did not give notice and make proof of loss, as required by the terms and conditions of the policy, is one of fact, which 202a.- Where the assured in good will not be reviewed on appeal. Phanix faith and within the stipulated time furIns. Co. v. La Pointe, 5 West. Rep. 512;nishes a statement of loss, failure of the 118 Ill. 384; aff'g, 17 Bradwell, 248.

company to return such statement, or to notify the assured of defects therein, is some evidence for the jury of waiver of strict compliance. *Whitmore v. Dwelling House Ins. Co., 1 Pa. Adv. R. 559; 23 Atl. Rep. 1,131.

202b.- Where there is evidence to show that an itemized statement of loss under an insurance policy was placed in an envelope properly stamped and addressed, which was put in the post office, and on the other hand evidence was introduced showing that it was not received, the question of its receipt is properly referred to the jury. Id.

203. Evidence and procedure in action. A letter from secretary of the company to assured, acknowledging the receipt of preliminary proofs and notice of loss, and admitting the sufficiency thereof, is sufficient evidence of the time when they were given to and received by the company. Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20.

199.- Where notice of the fire was at once given to the local agents of the company, and proofs of loss were furnished to and forwarded by such agents to the company, which were refused for several reasons and on account of the omission of the signature and oath of one of assured, and returned to the assured for amendment; and they, being amended and forwarded again to the company without such oath, were again refused and returned,—held, that, it appearing that assured did all they possibly could in perfecting these proofs; and an express pur204.- Where assured had served several pose to embarrass and hinder them in mak-papers on the company, and, upon the ing proofs, by imposing blind conditions trial, gave them notice to produce such in the hope of being able to legally reject papers, which the company refused the proofs of loss, appearing from the to do, giving no reason or excuse for such letters of the company,-it was for the non-production; held, that the jury were jury to determine whether such omission not thereby authorized to presume or find was excused and the proofs sufficient; and that such papers contained the preliminif they so found, it would not invalidate ary proof of the assured required by the the policy. Marthinson v. North B. and condition of the policy, and that such M. Ins. Co., 7 West. Rep. 637; 64 Mich. 372. failure or refusal was not a circumstance 200. Whether proofs of loss were fur- from which the jury could legally prenished within a reasonable time is a mixed sume that such papers contained the question of law and fact. American F. proof. In the absence of evidence to show

Evidence and Procedure in Action.

that the preliminary proof required by of insurance requires the insured to the policy had been furnished, or that deliver an account of their loss, with their there had been a waiver on part of the oath or affirmation declaring the account company of its production; held, that the to be true and just, etc., the affidavit of assured could not recover. Spring Gar- the insured is admissible to prove a comden Mut. Ins. Co. v. Evans, 9 Md. 1. pliance with such condition, but for no other purpose. Phonix Ins. Co. v. Lawrence, 4 Metc. 9 (Ky.)

209.- Though the insurer does not 216.- A letter written by agent of object to the regularity of the preliminary other companies, containing statement proofs, yet the insured cannot prove his "all my companies have paid, and I see loss or the particulars of it by them. He no reason why the others should not pay," cannot make evidence for himself. Com- cannot be used on cross-examination of monwealth Ins. Co. v. Sennet, 41 Pa. 161. defendant's manager and witness for pur210.- Where a condition of a policy pose of contradicting him. Kaler v.

Waiver. Objections Must be Prompt and Specific.

Builders' Mut. Fire Ins. Co., 120 Mass. 333. 217.- Evidence by experts of manner of adjustment of losses is incompetent unless assured has knowledge thereof at time of the issue of policy, or at least that the custom was so general and well understood that it must have entered into and formed part of the contract. Williams v. Niagara Fire Ins. Co., 50 Iowa, 561.

225.- When it is necessary to prove that proof of loss was made, an exhibit of the papers by which this proof was made would, with the other necessary proof, be sufficient, whether such papers contained the original schedule made out, or a copy of it. Continental Ins. Co. v. Pruitt, 65 Tex. 125.

226.- Where defendant pleads a condi218.— Plaintiff was asked, "So far as tion in the policy that insured would you could individually, did you get these render a particular account of his loss as proofs of loss forwarded as soon as it was soon as possible after the fire, a reply possible for you to do so?" Objected to, thereto that he did render a particular allowed, and exception. Held, competent.account as soon as possible after the fire Brink v. Hanover Fire Ins. Co., 80 N. Y. directly traverses the plea, and is suffi108. cient; and the addition of the words, “as 219.— When assured has made an hon- the nature of the case and surrounding est mistake in his proofs of loss as to a circumstances would admit," is a mere material fact, he may on the trial give expression of what the law implies in evidence to correct it, where it will not every case. Pollard v. Phænix Ins. Co., operate as a surprise to the company. 63 Miss. 244.

The mistake in this case related to cause 226a. A complaint must allege that and origin of fire. Waldeck v. Spring-proofs were served within the time field F. and M. Ins. Co., 10 Ins. L. J. 930; limited. *Furlong v. Agricultural Ins. 53 Wis. 129. Co., 18 N. Y. Supp. 844.

--

220. If there is no objection to the proofs, a compliance with the condition is established by assured's evidence of delivery and retention without objection, without giving company notice to produce them. Hartford Ins. Co. v. Walsh, 54 Ill. 164.

221. It is not necessary for plaintiff's pleadings in an action on a policy to set out the proofs of loss. Sun Mut. Ins. Co. v. Holland, 2 Tex. Ct. App. Civ. Cas. § 443. 222.- Proofs of loss are admissible in evidence only as showing compliance with condition precedent to loss becoming payable. Their sufficiency is a question of law for the court. It is error to let such papers be taken out by a jury, when they retire to consider the verdict. Kittanning Insurance Co. v. O'Neil, 15 Ins. L. J. 309; 1 Cent. Rep. 559; 110 Pa. 548.

227.- Secondary evidence of the contents of proofs of loss cannot be introduced by the assured, unless he has given notice to the insurer to produce such proofs and the latter has failed to do so. *Hanover F. Ins. Co. v. Lewis, 23 Fla. 193; 1 So. Rep. 863; 16 Ins. L. J. 956.

227a. To sustain proof of a waiver by denial of liability insured may introduce a letter from an officer of the company, even although waiver not distinctly pleaded. *Capitol Ins. Co. v. Bank of Pleasanton, 21 Ins. L. J. 519; 29 Pac. Rep. 578; 48 Kans. 397.

228. Waiver. Objections must be prompt and specific. Company's objections to proofs must be promptly made. O'Connor v. Hartford Ins. Co., 31 Wis. 160; Planters' Mut. Ins. Co. v. Deford, 38 Md. 382, 404; Patterson v. Triumph Ins. Co., 64 Me. 500; Hibernia Ins. Co. v.

223.- Evidence of a waiver of proofs is admissible without being specially pleaded. German Fire Ins. Co. v. Gru-O'Connor, 29 Mich. 241; Swan v. Liv. nert, 14 Ins. L. J. 844; 112 Ill. 68.

224.- Where preliminary proof of loss is required by the policy, the assured must allege and prove that the proof has been made or waived, and on his failure to do so a non-suit should be granted. *McCormack v. North Brit. Ins. Co., 78 Cal. 468.

Lond. and G. Ins. Co., 52 Miss. 704;
Young v. Hartford Ins. Co., 45 Iowa, 377;
Mercantile Ins. Co. v. Holthouse, 9 Ins. L.
J. 535; 43 Mich. 423.

229. And if not specifically made and pointed out, they are waived; and same result follows if objection is made to the loss upon a certain ground, in