Cas. 452; Capital City Ins. Co. v. Caldwell, 95 Ala. 77, 10 South. 355; Wheaton v. North British & Mercantile Ins. Co., 76 Cal. 415, 18 Pac. 758, 9 Am. St. Rep. 216; McClelland v. Greenwich Ins. Co., 107 La. 124, 31 South. 691; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241; Phillips v. Protection Ins. Co., 14 Mo. 220, distinguishing St. Louis Ins. Co. v. Kyle, 11 Mo. 278, 49 Am. Dec. 74; Fink v. Lancashire Ins. Co., 60 Mo. App. 673; Fink v. Lancashire Ins. Co., 66 Mo. App. 513; Reid, Murdock & Co. v. Mercurio, 91 Mo. App. 673; Johnson v. Dakota F. & M. Ins. Co., 1 N. D. 167, 45 N. W. 799; Equitable Life Assur. Soc. v. Winning, 58 Fed. 541, 7 C. C. A. 359, 19 U. S. App. 173 (a life insurance case); Crenshaw v. Pacific Mut. Life Ins. Co., 71 Mo. App. 42 (a life insurance case); American Acc. Ins. Co. v. Norment, 91 Tenn. 1, 18 S. W. 395 (an accident insurance case); Doggett v. United Order of Golden Cross, 126 N. C. 477, 36 S. E. 26. But in the Alabama, California, Louisiana, New Jersey, and Tennessee cases cited, the doctrine is rather assumed than decided. In the North Carolina case it is expressly stated that the doctrine stated was not necessary to the decision of the case; and this would seem to be true, also, as to the federal and the North Dakota cases, for in each of them the elements of an estoppel were in fact considered to have been present. And in connection with the Michigan case see Allen v. Milwaukee Mechanics' Ins. Co., 106 Mich. 204, 64 N. W. 15. The The Missouri cases cited do not stand alone or uncontradicted. (d) Time of waiver. As already noted, the decision as to the time within which a waiver of notice or proofs can be effectuated is generally bound up with the question as to the nature of such waiver. A full discussion of the correlation between these two questions, however, is possible only in connection with a consideration of the particular acts which will constitute a waiver of notice and proofs; and to the succeeding briefs discussing this question reference is made, not only for a fuller treatment of this question, but also for a more particular discussion of the nature of waiver, as appearing in the particular acts which may constitute it. But it should be here noted that the theory that estoppel cannot arise after the expiration of the stipulated time, from a misleading of the insured into believing that correct proofs will not be required, has no application where it is also held that the effect of delay is not forfeiture, but only a delay in the time within which action may be commenced. Obviously, under such a holding, if at any time before the commencement of the action the insured were misled into failing to furnish correct proofs, it would be taking an unfair advantage of him to afterwards insist on the failure of proofs or defects therein. Sun Mut. Ins. Co. v. Mattingly, 77 Tex. 162, 13 S. W. 1016. See, also. (e) Effect of waiver. The determination of the question as to whether a waiver is conclusive, or may be rescinded by the company, would seem to be largely dependent on the theory of the court as to the nature of the waiver; for, if the acts evidencing an intention to dispense with correct proof be considered, in and of themselves, as proving a waiver under the doctrine of election, it would seem that any subsequent act by the company of a contrary nature would be of no avail; while, if the waiver be considered as arising from the insured having been misled by such acts into failing to furnish the proofs, no reason is readily apparent why the company might not ordinarily, at any time before the commencement of action, demand a compliance with the terms of the contract. And most of the cases seem to proceed on this theory, though the connection between the two holdings is rarely indicated in the opinion. Thus, in New York, Maryland, and Missouri, where the courts hold, in effect, that no estoppel is necessary to constitute waiver by acts. showing the intention of the company to waive, it has also been held that the waiver, once established, cannot be rescinded. In the New York cases the two holdings were made in the same case. Fire Ins. Co., 83 N. Y. Supp. 457, 86 App. Div. 115, affirmed without opinion, 71 N. E. 1130, 179 N. Y. 557; Smith v. Home Ins. Co., 47 Hun, 30. And see, also, Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102, 11 Am. Rep. 469, and Roberts v. Insurance Co. of America, 94 Mo. App. 142, 72 S. W. 144 (St. Louis Court of Appeals), announcing the same doctrine as to the conclusiveness of waiver. On the other hand, in Oregon, Illinois, and Texas, where it is necessary that the acts showing intention should also have been such as might have misled the insured into his default, and in a Michigan case tried on the same theory, subsequent acts of the company indicating a willingness to accept correct proofs have been given full force as doing away with any prior waiver. The decision in such cases is not so much that a prior waiver has been rescinded, as that no waiver at all has been shown, unless, perhaps, as to the delay occasioned by the acts of the company. Hahn v. Guardian Assur. Co., 23 Or. 576, 32 Pac. 683, 37 Am. St. Rep. 709; Forest City Ins. Co. v. School Directors, Dist. No. 1, 4 Ill. App. 145; Allibone v. Fidelity & Casualty Co. (Tex. Civ. App.) 32 S. W. 569; Allen v. Milwaukee Mechanics' Ins. Co., 106 Mich. 204, 64 N. W. 15. The cases are not uniform, however, in supporting the theory. that, where waiver is dependent on intention and election, it cannot be rescinded, having once been established; and that, where it is dependent on a misleading of the insured into failing to comply with the policy requirements, it can be rescinded at any time before suit by a request for the stipulated proofs. Thus, in the Missouri case of Noonan v. Hartford Fire Ins. Co., 21 Mo. 81, a delayed objection to the proofs was held to prevent a waiver from arising, at least as a matter of law, out of the prior acquiescence and recognition of liability by the company. And in the early New York case of Gilligan v. Commercial Fire Ins. Co., 20 Hun, 93, a specific objection at the close of a 15-days silence was deemed sufficient to do away with any claim of waiver. Conversely, the Kansas City Court of Appeals, at a time when it was announcing the necessity of estoppel, decided in three cases that a waiver arising from the insured having been misled into failing to furnish the proper proofs could not subsequently be rescinded by the company. Porter v. German-American Ins. Co., 62 Mo. App. 520; Probst v. American Ins. Co., 64 Mo. App. 408; Brownfield v. Mercantile Town Mut. Ins. Co., 84 Mo. App. 134. In the Porter Case, however, it did not appear that the statement was essential to the decision of the case; and in the other two cases the demand for the proofs was not made until the stipulated time for furnishing them had expired. Of course, there can be no rescission of a waiver where it would operate to put the insured to more trouble or expense than would have been the case had the company, in the first place, followed the provisions of the policy and insisted on a strict compliance therewith. Jones v. Howard Ins. Co., 117 N. Y. 103, 22 N. E. 578. See, also, Pretzfelder v. Merchants' Ins. Co., 123 N. C. 164, 31 S. E. 470, 44 L. R. A. 424, where the court held that a failure of the insured to furnish proof after a waiver by an attempted appraisal, was rather a technical defense than a meritorious one. Nor can the company rescind a waiver where the delay between the time the company should have spoken and the time it does speak would operate to the detriment of the insured. Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith (N. Y.) 268; Atlantic Ins. Co. v. Wright, 22 Ill. 462. Such, also, appears to have been the basis of the decision in Fillmore v. Great Camp of the Maccabees, 109 Mich. 13, 66 N. W. 675, a life insurance case, though the exact application of the doctrine does not clearly appear. An attempt to comply with the policy will not do away with a prior waiver. Warshawky v. Anchor Mut. Fire Ins. Co., 98 Iowa, 221, 67 N. W. 237; (f) Who may take advantage of waiver. Where there is a waiver of proof of loss by the company, it inures to the mortgagee, where the policy is payable to him as his interest may appear (State Ins. Co. v. Ketcham, 58 Pac. 229, 9 Kan. App. 552). Conversely, it has been held that a payment to a mortgagee having no greater claims on the company than the mortgagor named as insured will inure to the benefit of the mortgagor, though at the time the mortgagor was in default for failure to furnish proofs. But where the payment is made under the full mortgage clause, such result does not follow (Hare v. Headley, 54 N. J. Eq. 545, 35 Atl. 445). There is authority for saying that what ever would be a waiver in an action by the policy holder obtains likewise in favor of a creditor of the insured, pursuing the company by garnishment (Reid, Murdock & Co. v. Mercurio, 91 Mo. App. 673). But in Nickerson v. Nickerson, 80 Me. 100, 12 Atl. 880, a similar decision was based solely on statute 2 giving a mortgagee a lien upon the policy insuring the mortgaged property after notice to the company. The statute gave such mortgagee a right to collect his mortgage debt by trustee process commenced within 60 days after loss, and the court held that, inasmuch as trustee process would not be good as against the company until the proofs were furnished, it must have been the legislative intent that the mortgagee should be entitled to himself furnish the preliminary proofs, or take advantage of a waiver thereof. A waiver of defects in proofs of death, arising from the representations of the company to the beneficiary, will inure to the benefit of the personal representative of the insured who institutes suit on the policy (Jennings v. Metropolitan Life Ins. Co., 148 Mass. 61, 18 N. E. 601). 12. POWERS OF OFFICERS AND AGENTS TO WAIVE NOTICE AND PROOFS OF LOSS, DEATH, OR INJURY. (a) In general. (b) Powers of officers. (c) Powers of adjusters. (d) Powers of general agents. (e) Powers of local agents. (f) Effect of statutory provisions. (g) Delegation of authority. (h) Provisions of policy limiting powers of agents and methods of waiver. (1) Same Special provisions. (j) Waiver of limitation on power of agent. (k) Same-By whom waived. (a) In general. It is a well-settled rule that any officer or agent of an insurance company, who has power to accept proofs of loss, and to deal with the insured in the settlement of the claim, will have power to waive 2 Rev. St. Me. c. 49, § 52. |