These findings are supported by substantial evidence, they are not clearly erroneous, and they must therefore stand on appeal. Rule 52(a), Rule of Civil Procedure for District Courts, 28 U.S.C.A. following section 723c. It is well settled in Oklahoma that where an insurance company receives actual notice of a loss by fire and immediately causes an adjuster to inspect the premises and investigate the extent of the loss, it waives the requirement contained in the policy for the making of a formal verified proof of loss. Springfield Fire Marine Ins. Co. v. Booher, 102 Okla. 89, 226 P. 1028; Aetna Ins. Co. v. Jackson, 177 Okla. 345, 60 P.2d 210. The facts found by the court bring this case well within that rule. It is contended, however, that a letter which the adjustment bureau wrote the attorney for plaintiff prior to the expiration of the sixty-day period, and a letter which the agent of the companies wrote the attorney shortly after the expiration of such period, disclosed a lack of intention on the part of the companies to do anything which could constitute a waiver of the requirement for the making of proof of loss and an understanding that such requirement had not been waived; and that despite such sixty-day provision plaintiff still could have furnished the proof within the period allowed for the bringing of an action, and that it was his duty to do so. It is held by the Supreme Court of Oklahoma that the requirement in a standard policy of fire insurance that proof of loss shall be given within sixty days after the fire is a condition precedent to the right to maintain an action on the policy but that failure to co
Plaintiff contends that proof of claim could not be completed and filed with the defendant until the independent auditor, employed by plaintiff, completed his audit in the early part of November, 1959; that prior to that time, plaintiff's claim would have been based upon suspicion. Under such circumstances, we have held that proof of loss must be made to the surety on an indemnity bond as provided by the terms of the bond, unless the surety waives the requirement by its action or conduct. Aetna Ins. Co. v. Jackson et al., 177 Okla. 345, 60 P.2d 210; Maryland Casualty Co. v. Tucker, 186 Okla. 16, 96 P.2d 80. In this case, the evidence shows that one of the plaintiff's attorneys contacted the defendant's claim manager on several occasions concerning plaintiff's claim.
"* * * Where an insurance company receives actual notice of a loss of a motorcar by fire and the agents and adjusters of such company promptly make a complete investigation, reporting such facts to the company, and act in such a manner as would lead a reasonable person to believe no further proof necessary, the said company thereby will be held to have waived the written verified notice required to be filed in 60 days under the conditions of the policy." Aetna Ins. Co. v. Jackson, 177 Okla. 345, 60 P.2d 210; Home Ins. Co. v. McClaran, 197 Okla. 48, 168 P.2d 306; Aetna Ins. Co. v. Ralls, 200 Okla. 32, 190 P.2d 787. The final proposition goes to the sufficiency of the evidence, of value of the property at the time of loss, to sustain the verdict and judgment.
"Where an insurance company, after notice of loss, investigated the matter and acts in a manner which would lead a reasonable person to believe that it does not desire further proof, it may not thereafter rely on the failure of the insured to supply the formal proof required by the policy, but will be deemed to have waived such requirement." To this same effect are other cases from this court, including Century Ins. Co., Ltd., v. Rice, 193 Okla. 418, 144 P.2d 953; Aetna Ins. Co. v. Jackson, 177 Okla. 345, 60 P.2d 210; Springfield Fire Marine Ins. Co. v. Booher, 102 Okla. 89, 226 P. 1028; State Mutual Ins. Co. v. Green, 62 Okla. 214, 166 P. 105; Connecticut Fire Ins. Co. v. Youngblood, 199 Okla. 227, 184 P.2d 792; Home Ins. Co. v. McClaran, 197 Okla. 48, 168 P.2d 306. It is next contended by the insurance company that the insured has settled his claim with the person who caused the fire and has thereby deprived it of the right of subrogation. It is true the insured did receive furniture to the admitted value of more than $1,000 from the person alleged to have caused the fire, but it is denied by the insured that he received this in settlement of the claim.
Where an insurance company, after notice of loss, investigates the matter and acts in a manner which would lead a reasonable person to believe that it does not desire further proof, it may not thereafter rely on the failure of the insured to supply the formal proof required by the policy, but will be deemed to have waived such requirement. American Home Fire Assur. Co. v. Hargrove 10 Cir., 109 F.2d 86; State Mut. Ins. Co. v. Green, 62 Okla. 214, 166 P. 105, L.R.A. 1917F, 663; Springfield Fire Marine Ins. Co. v. Booher, 102 Okla. 89, 226 P. 1028; Aetna Ins. Co. v. Jackson, 177 Okla. 345, 60 P.2d 210; Continental Ins. Co. of N.Y. v. Portwood, supra; Connecticut Fire Ins. Co. v. Youngblood, 199 Okla. 227, 184 P.2d 792; Century Ins. Co., Ltd., etc., v. Rice, 193 Okla. 418, 144 P.2d 953. Supersedeas bond having been filed herein judgment is rendered accordingly in favor of plaintiff thereon.
We think there can be no doubt that under the circumstances here shown this plaintiff was led to believe that the filing of a formal proof of loss would not in any way affect or aid him in settling the obvious differences between him and the insurance companies. We think any reasonable person would assume that the companies did not need or desire further proof of the loss, and that the rule is applicable which this court announced in Aetna Ins. Co. v. Jackson, 177 Okla. 345, 60 P.2d 210, as follows: "Where an insurance company receives actual notice of a loss of a motorcar by fire and the agents and adjusters of such company promptly make a complete investigation, reporting such facts to the company, and act in such a manner as would lead a reasonable person to believe no further proof necessary, the said company thereby will be held to have waived the written verified notice required to be filed in 60 days under the conditions of the policy."
a. The first of these rules is that where the insurer has made an investigation of the fire and acted in a manner that would lead a reasonable person to believe that it did not desire further proof, it may not thereafter rely on the failure of the insured to furnish the formal proof required by the policy, but will be deemed to have waived such requirement. Aetna Ins. Co. v. Jackson, 177 Okla. 345, 60 P.2d 210; Springfield F. M. Ins. Co. v. Booher, 102 Okla. 89, 226 P. 1028; Couch, Cyc. of Ins. Law, vol. 7, ยง 1577. b. The second rule is that where the insured, in attempting in good faith to comply with the provisions of the policy, furnishes the company, within the time stipulated, what is apparently intended as a proof of loss, the company must point out particularly any defects therein if it intends to rely on them. If it retains the proofs without objection, it will be held to have accepted them as a sufficient compliance with the provisions of the policy.
Numerous assignments of error are presented, but for the purpose of this appeal it will only be necessary to decide whether the defendant waived the provision of the bond requiring proof of loss to be made. As pointed out by defendant, it is a settled principle that proof of loss must be made, unless the insurance company waives this requirement by its actions or conduct. Aetna Ins. Co. v. Jackson et al., 177 Okla. 345, 60 P.2d 210. The record discloses plaintiff learned of the likelihood of a shortage in Greenwood's accounts, and thereupon sought to find the bond, but was unable to do so.