No. 842 | Utah | Oct 6, 1897
On May 2, 1896, plaintiff filed her complaint, to recover upon the policy of insurance issued to her by the defendant on November 18, 1895, upon certain personal property, owned by plaintiff, of the value of $4,000. The policy of insurance, with its conditions, is set out in the complaint, and made a part of it. It is alleged that the properly was insured against loss by fire for one year, in the sum of $1,500; that the property was destroyed by fire December 15, 1895, to plaintiff’s loss in the sum of $1,500; that proofs of loss and interest were duly served. The. complaint further alleges that the plaintiff had performed all the conditions of said policy on her part to be performed; that the defendant refused to pay said loss, denied and disclaimed any liability in the premises whatsoever, still refuses to pay said loss, and refuses to assign any reason for its action; and claims judgment in the sum of $1,500. The policy set out in the complaint contains the usual provision requiring the insured to submit to examination, and, in case of disagreement as to the amount
At the commencement of the trial, the defendant objected to the introduction of any testimony in the case, for the reason that the complaint did not state a cause of action. Under this objection it is claimed that the complaint does not allege that an arbitration was had, nor any fact to excuse the non-performance of this provision of the policy of insurance. Section 3243, Comp. Laws 18S8, provides: “ In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part. * * * ” The complaint does not affirmatively show that the plaintiff and defendant could not agree upon the amount of the loss. This same question arose in the case of West v. Insurance Soc., 10 Utah 442" court="Utah" date_filed="1894-07-27" href="https://app.midpage.ai/document/west-v-norwich-union-fire-insurance-society-8653821?utm_source=webapp" opinion_id="8653821">10 Utah 442, where this court held that, where a pleading contains an allegation of the performance of a condition, it is not absolutely necessary to allege a waiver, because proof thereof is admissible under the general allegations. 2 May, Ins. § 589; Ins. Co. v. Dougherty, 102 Pa. St. 568.
We are of the opinion that the allegations in the complaint were sufficient, under the statute, to admit the testimony under the general allegations. This court has so held, and we are not now disposed to change the ruling. It is true that some testimony was admitted out of
Among other matters, the court found that the property insured was almost entirely destroyed by fire December 15, 1895, but the charred remains of some articles remained ; that the plaintiff was damaged in the sum of $3,-500; that on the 18th day of December, 1895, the defendant’s adjuster and the plaintiff each selected an appraiser to appraise the loss, and each appraiser examined the property, and appraised the charred remains of the property at $500; that the appraiser appointed by the plaintiff insisted upon appraising the property that was totally destroyed by fire, but the appraiser appointed by the defendant company would not consent to appraise anything except what could be seen and was not consumed by fire. Thereupon said appraisers made a report in writing, and delivered the same to the defendant’s adjuster, who since such time has retained the same. Thereupon the plaintiff requested the defendant’s adjuster to have the property actually consumed appraised, which request was denied. Tire plaintiff then furnished the adjuster, at his requests with a list of the property destroyed by fire, but was unable to furnish the original invoices, as none had ever been received. Thereupon proof of loss was made, and the defendant’s adjuster, in behalf of the defendant, denied and disclaimed all liability on the part of the defendant, and claimed that the insured property was not the property of the plaintiff. Plaintiff then placed the matter in the hands of her attorneys January 13, 1896; and thereafter the attorneys, by way of compromise, attempted to have an amicable arbitration of the matter in dispute, but no agreement could be arrived at, and the defendant company did not admit their liability in the premises. On May 21, 1896, this suit was instituted; and
There are many errors assigned upon the refusal of the court to admit or reject certain testimony. Upon an examination, we find that many of these assignments of error were dependent upon the question settled by this opinion. The cross-examination of witness Stephens was too much restricted; but as the trial was before the court without a jury, and as it appears the defendant could not have been prejudiced by the rulings, we are not disposed to disturb the judgment on that account. We ñnd no reversible error in the record. The judgment of the court below is affirmed, with costs.