Best v. German Insurance

68 Mo. App. 598 | Mo. Ct. App. | 1897

Ellison, J

J.&wkey;This is an action on a fire insurance policy covering plaintiff’s residence and some personal' property, for loss occurring August 21, 1894. The judgment below was for plaintiff.

NPSroofsNof loss: evidence: practice. The main defense to the policy consists in two points: One that plaintiff had not made proofs of loss as required by the policy, within thirty days; the other, that he made a false warranty . " as to the amount of incumbrance on the real estate at the time of taking the policy.

As to the first defense, we are satisfied the court did right in refusing defendant’s demurrer and finally submitting the question of waiver of proofs to the jury under proper instructions.

Triñce:”‘ariamyAs to the second defense, the statement and warranty by plaintiff was that the property was incumbered by a mortgage for $2,500, whereas it was, in fact, incumbered by a mortgage for $3,000. This was a substantial breach of the warranty and avoids the policy as to the real estate, unless relieved by the following considerations: The policy provided that any mistake therein discovered by the policy holder should be made known to the company by notice. Plaintiff concedes that the true amount of the incumbrance was $3,000, and that he notified the defendant thereof when he discovered it on receipt of the policy, which he had received through the mail. If he did so notify the company, it makes the policy valid, both for the reason that notice was provided for, and that the company continued for á long time afterward, in various ways, to recognize the contract of insurance as valid and never objected to its continuance, or in anywise intimated that the contract was not in force.

Wtler^evidence. But plaintiff’s proof of notice was simply that he “wrote to the company at Freeport, 111.,” on December 30, 1892. There was no evidence that defendant ever received the letter. Plaintiff says he never heard from defendant in response to the letter. The evidence was insufficient to make a prima facie showing of notice. The plaintiff should have shown that the letter was properly addressed, stamped, and deposited in the mail. 2 Wharton, Evid., sec. 1323; Huntley v. Whittier, 105 Mass. 391; Briggs v. Hervey, 130 Mass. 187.

The case of Crowell v. Ins. Co., 47 Mo. App. 109, does not sustain plaintiff. In that case, the proof, showed the letter to have been directed, stamped, and mailed. Since the state of the evidence is not such as to disclose that plaintiff made all the showing that can be made as to the matter of notice, we will not reverse the case absolutely, but will remand it for trial. It would perhaps be well for plaintiff to amend.his petition, showing the facts as to the matter of mistake in the incumbrance and the notice. Reversed and remanded.

All concur.