102 P. 631 | Utah | 1909
This action was brought to recover on a policy of fire insurance alleged to have been issued and delivered by the defendant, insuring property of the Mona Co-operative Mercantile Institution, consisting of a store building, fixtures, and merchandise. After the fire the claim was assigned by the insured to the plaintiff. The policy, among other things, provides that, “if fire occur, the insured shall give immediate notice of any loss thereby in writing to this company,” the insurer. It further provides that “within sixty days after the fire, unless such time is extended ini writing;
Tbe case was tried to tbe court without a jury. TJpon tbe evidence adduced by both parties tbe court found: That tbe policy was issued and delivered by tbe defendant on tbe 9th day of July, 1904, “for a consideration to be paid,” and that it was in effect at tbe time of tbe fire, which occurred on tbe 14th day of December, 1904. That tbe property, of tbe value of three thousand dollars, was totally destroyed by fire, and that tbe defendant failed to pay tbe loss or any part thereof. That tbe claim was assigned to tbe plaintiff. “That tbe Mona Co-operative Institution has duly complied with and performed all tbe terms and conditions of said policy on its part to be kept and performed, except that neither it nor its assignee, tbe plaintiff herein, gave written notice of loss by tbe fire aforesaid to tbe defendant; but that nevertheless tbe defendant by its conduct waived any such notice, and was not prejudiced by such failure to give it; and, further, that tbe Mona Co-operative Institution did render to said defendant a statement as specified in line seventy-one and tbe following lines of said policy concerning said
It contends that the conclusion of law and the judgment are not supported by the findings, and that the findings are not supported by the evidence. It urges that the provisions of the policy requiring the insured to give immediate notice in writing of the loss by fire, and within sixty days after the fire to render proofs of loss, were conditions precedent; that, to entitle the plaintiff to recover, it was essential to aver and prove that notice of the loss was given in writing within a reasonable time after the fire, and that proofs of loss were rendered within sixty days after the fire, or that performance of these requirements was waived; and that it is neither shown by the evidence nor found by the court that such notice was given, or that such proofs were rendered, nor that the giving of such notice or the furnishing of proofs was waived. The respondent contends that the provisions in the policy were not conditions precedent, and that thereunder proofs of loss could properly be made at any time within one year (less sixty days) after the fire and before suit was
The policy in the event of a fire required the insured, among other things, to do two specific things: (1) To give notice of any loss in' writing; and (2) to furnish proofs of loss. The findings do not disclose the facts nor the things done in respect to these requirements. As to the first, the findings show “that the insured duly complied with and performed all the terms and conditions of said policy on its part to be kept and performed, except that neither it nor its assignee, the plaintiff herein, gave written notice of the loss by the fire aforesaid to the defendant; but nevertheless the defendant, by its conduct, waived any such notice and was not prejudiced by its failure to give it.” This is a. finding that a written notice was not given and a conclusion that “such notice” was waived. But there is m> finding that any other kind of notice was given, the time in which it was given, or that the giving of notice of loss was. waived. Furthermore, the finding that the defendant by its conduct waived notice in writing is not the finding of a fact, but a mere conclusion. No facts with respect to the waivér are found. We are, however, referred to the evidence where it is claimed the facts showing a waiver appear. We are, of'course; at liberty to look into the evidence to ascertain
The general finding “that all the material allegations of the complaint are true, and that the defendant failed to establish by any competent proof its defense herein,”
Because of the uncertainty and insufficiency of the findings in the particulars referred to, we are of the opinion that the judgment is not supported by them. We have therefore concluded to remand the case to the trial court with directions to vacate the findings and to set aside the judgment, heretofore made and entered, and to make findings of fact on all the issues tendered by the pleadings, and to separately make and state conclusions of law on the facts found, and to enter a judgment accordingly. We'have a statute (section 3304x, Comp'. Laws 1907) which
The costs of this appeal are awarded to appellant.