72 W. Va. 120 | W. Va. | 1913
Adam Seyler recovered a judgment for the sum of $800.00, against the British America Assurance Company, in the circuit court of Cabell county, in an action on a fire insurance policy. The defense was non-compliance with the requirements of the policy, respecting notice and the furnishing of proofs of loss.
Certain special pleas assert that the policy required a statement or proof of loss to be rendered within 60 days after the fire, unless the time should be extended in writing by the com
The plea, attempting to assert a forfeiture, on the ground of a change of the title or interest of the insured, by reason of the execution of the deed of trust, constituted no defense. According to the great weight of authority, the execution of a deed of trust or mortgage on the property does not constitute either a change of title or change of interest within the meaning of the clause relied upon. Cooley’s Briefs, Law of Ins., Vol. II., pp. 1738-9; Nease v. Insurance Co., 32 W. Va. 283; Quarrier v. Insurance Co., 10 W. Va. 507; Judge v. Insurance Co., 132 Mass. 521; Taylor v. Insurance Co., 83 Ia. 402; Insurance Co. v. Walsh, 54 Ill. 164; Insurance Co. v. Eddy, 55 Ill. 213; Insurance Co. v. Barwick, 36 Neb. 223; Byers v. Insurance Co., 35 O. St. 606; Insurance Co. v Stocking Co., 66 Vt. 439; Wolf v. Insurance Co., 115 Wis. 402; Peck v. Insurance Co., 16 Utah 121; Koshland Insurance Co. v. Stewart, 13 Ind. App. 627.
Though these pleas claim more, on the ground of non-compliance with the conditions, than the contract accords the defendant, they constituted a bar to this action on the policy, if sustained by the evidence, or rather if the matter set up in them has not been disproved by the evidence.
The special replications have a sort of double aspect, since they aver substantial compliance with the conditions, relating to notice and proof of loss, and also set up certain facts, relied upon as constituting ground of waiver. The first one says the plaintiff has furnished and the defendant has received notice and proof of loss as required by the terms of the policy, and then specifies dates on which notice was given, without saying whether the notices given were verbal orvin writing. The second one avers delivery of a sufficient proof of loss on the 2nd day of March, 1908, and within sixty days after the date of the fire, and then states that the defendant returned it on April 27, 1908, with objections.
The' so-called pleas and special replications are objectionable in form, since all are very general and somewhat indefinite, but the court properly overruled all the objections, because they were not made in proper form. Under the statute, applicable to the
Only one. other matter merits consideration. The evidence affords no basis for a claim of waiver of the clause requiring a proof of loss, and nothing having the semblance of such a paper was furnished earlier than March 2, 1908. The defective paper adduced in evidence as a proof of loss bears that date, and, as shown by the summons introduced as evidence, this action was commenced March 30, 1908, twenty-eight days later. An express provision of the policy forbids an action thereon within 60 days after compliance with the conditions of the policy. This limitation was not waived nor is there any evidence of a waiver thereof. What is relied upon as such evidence has no tendency to prove it. The company failed to acknowledge the receipt of. the defective proof of loss or to make any objection to it until April 27, 1908. This might be evidence of waiver of the defects in the proof of loss but it does not tend to prove denial of liability or waiver of the limitation in favor of the insurer as to maturity of the cause of action. Notwithstanding this, the court gave instructions for the plaintiff, authorizing a finding in his favor, .if the jury believed he had substantially complied with the conditions of the policy, and refused instructions for the defendant, denying right of recovery because the action had been prematurely brought. These rulings were clearly erroneous.
Judgment reversed; action dismissed without prejudice.