14 Utah 265 | Utah | 1896
Lead Opinion
This is a suit on a fire insurance policy to recover for loss occasioned by fire. The defendant interposed a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and judgment entered in favor of the plaintiff for $938 and costs. This appeal was prosecuted from the order overruling the demurrer and from the judgment.
The complaint, after alleging the corporate existence of the defendant, avers that the plaintiff, at the time of its insurance and destruction by fire, was the owner of the property in question; that said property was situated on Washington avenue, in Ogden city, Utah Territory; that on the 30th of November, 1895, in consideration of the payment of a premium of $17.50, the defendant, by its general agent, “made their policy of insurance in writing, which is hereto attached, and made a part of this complaint”; that on December 15, 1895, the insured property was greatly damaged, and in part destroyed, by fire, to the plaintiff’s loss thereby in the sum of $1,200; that between the 15th and 25th of December, 1895, the plaintiff furnished proof of the destruction and loss, and otherwise performed all of the conditions of said policy on her part; and that on February 28, 1896, defendant refused to pay such loss, and denied and disclaimed liability. Counsel for the appellant insist that the complaint, independent of the insurance policy, does not state a cause of action, and that, notwithstanding the express averment to that effect, the policy constitutes no part of
Under this practice, however, a party cannot plead
It is also insisted by counsel for the appellant that there is no allegation that proof -of loss was furnished, or notice given, pursuant to the requirement of the policy. If this contention were admitted to be well tahen, it could not avail the appellant, because the complaint contains an averment to the effect that on the 28th day of February, 1896, the defendant company refused to pay the loss and denied and disclaimed any liability; and where an insurance company disclaims liability under the policy, and refuses to pay, proof of loss is not necessary. In such case the loss becomes payable immediately upon such disclaimer and refusal, and proof of loss is waived. West v. Insurance Soc., 10 Utah 442; Daniher v. Grand Lodge, 10 Utah 110. Many of the objections made to the complaint in this case cannot be considered on general demurrer. We are of the opinion the demurrer was properly overruled, and that the record contains no reversible error. The judgment is affirmed.
Concurrence Opinion
I cannot concur with my brethren in tMs case. The statute provides that “the complaint must contain a
Rehearing
ON PETITION POE REHEARING.
(Nov. 11, 1896.)
In this case the point is now made in the appellant's petition for a rehearing on the question of proof of loss that the appellant company did not disclaim liability under the policy, and refuse payment, until after the time within which proof of loss should 'have been furnished under the contract. Even if this position be correct, it cannot avail the appellant, because it is alleged, in the complaint that between the 15th and 25th of December, 1895, proof of loss was furnished. This was within the time required by the terms of the policy, and we think the allegation, as made in the complaint, was
I am of the opinion- that a rehearing ought to be granted, based upon the errors assigned in the record.