Spooner v. Vermont Mutual Fire Insurance, 53 Vt. 156

Spooner v. Vermont Mutual Fire Insurance

53 Vt. 156 | Vt. | 1880

The opinion of the court was delivered by

Barrett, J.

The by-law requires a statement of the loss, that is, of the property destroyed or damaged, to be signed by the *161owner, and verified by the oath of the owner, with the additional oatb, that the party making such statement was, at the time of the loss, the owner of said property. It turns out that of the property lost, Ohloe, the wife, was the sole owner. The statement was not sworn to by her. It does not appear that any oath was made by either, as to the ownership of the property. The property was insured as being in the joint ownership of C. D. and S. Spooner, with no intimation in the policy that they were wife and husband, and no intimation that she was sole owner. In fact, so far as indicated by the face of the policy, the ownership was that of partners, or joint tenants, or tenants in common. The declaration alleges that all of said buildings and property were-owned by the plaintiffs in fee. The directors at a regular meeting disallowed the plaintiffs’ claim. This suit was commenced more than eleven months afterward. It did not appear for what reason the claim was disallowed. It may have been for misrepresentation as to the ownership, or for overvaluation, or for not having received any notice as required, or for failure to give the statement verified by oath, as required in the by-laws, or for any of the other reasons, that would render the claim invalid. This analysis and statement have been made with the view of testing the questions made as to the charge. The court told the jury explicitly that that statement was a substantial compliance with the by-law. This we think erroneous. The failure of the owner of the property to make oath to the statement rendered the statement defective in a material respect. It may be true that such defect might be waived by the company ; but there was no evidence in the case tending to show that the company did waive it. It is not true as matter of law that by proceeding to a determination of plaintiffs’ claim, the defendant waived any and all defects in said statement. This is obvious when it is considered that the determination against the claim may have been on the ground and reason of defects in the statement, just such as existed in this case. The next clause of the charge involves error by putting to the jury a hypothesis that there was no evidence to show existed in fact, namely, that defendant rejected the claim on any other ground than that no detailed statement had been received, or that *162only a fatally defective one had been received. As before suggested, the claim may have been rejected, so far as the evidence shows, for the reason that no detailed statement, or only a fatally defective one, had been received, as well as upon any other grounds, or for any other reasons. Without going into other points. Reversed and remanded.