Allen v. Phoenix Assur. Co.

• Decision Date: 24 November 1906
• Citation: 12 Idaho 653,88 P. 245
• Parties: GEORGE L. ALLEN et al., Appellants, v. PHOENIX ASSURANCE COMPANY, Respondent
• Court: Idaho Supreme Court

88 P. 245

12 Idaho 653

GEORGE L. ALLEN et al., Appellants, v. PHOENIX ASSURANCE COMPANY, Respondent

Supreme Court of Idaho

November 24, 1906

FIRE INSURANCE-APPLICATION FOR INSURANCE-PROOF OF LOSS-WAIVER-SOLE OWNER IN FEE SIMPLE-ASSIGNMENT OF POLICY.

1. Where the insurer relies on a condition subsequent incorporated in a policy of insurance to defeat the right of the insured to recover after loss, the insurer must specially plead such condition and breach thereof, and the plaintiff in an action to recover on the policy has a right to introduce evidence to rebut any proof of breach of condition so pleaded, or to show a waiver of the condition of the insurer.

2. Where the plaintiff in an action on an insurance policy makes a prima facie case establishing the fact of issuance and delivery of the policy and the payment of the premium thereon, the loss through and on account of the cause insured against, and the furnishing of notice and proofs to the insurer as required by the policy or the waiver thereof on the part of the insurance company, the case should go to the jury, and it is error for the trial court to grant a nonsuit.

3. Where an insurance company has sent its agent and adjuster to the place where the loss occurred to take the proofs and adjust the loss, and after examination and investigation by such adjuster he informs the insured that his company cannot and will not, pay the loss, and places the refusal to do so on the grounds that the policy has been assigned and urges no other ground of objection whatever, and informs the insured that he has nothing further to do with the matter, and that they will have to deal directly with the company, and the company, on the other hand, through its home office, informs and advises the insured that the matter is still in the hands of their adjuster, who visited the premises, and the adjuster thereafter refuses to further negotiate or deal with the insured looking to an adjustment of the loss, such facts establish a sufficient prima facie case of waiver of proofs to entitle the same to go to the jury.

4. Where an insurance policy contains a clause providing that the policy shall be void "if the interest of the insured be other than unconditional and sole ownership, or if the subject of insurance be a building on ground not owned by the insured in fee simple," and it is shown that the property insured was situated upon a government homestead owned and claimed by the insured in which the legal title remained in the United States government, and on which final proof was not made until after the loss by fire. Held, that there was not such a failure of title as to defeat the right of recovery under this stipulation as to ownership.

5. ID.-In such a case the sole and entire burden of the loss, in case of loss, falls upon the insured (the homesteader), and the government has no interest in the property destroyed, and suffers no loss on account thereof.

6. Where it is shown that the insured truthfully and correctly stated the nature and condition of his title in making his application for insurance, he will not be precluded from recovering in case of loss on account of a contrary statement as to title inserted in the policy by the underwriter.

7. Assignment or hypothecation of a policy of fire insurance of the face value of $2,000 to a creditor, as collateral security for an extension of time on a debt of $300, does not constitute or amount to an assignment of the policy in violation of the stipulation contained therein to the effect that the policy shall be void if "assigned before loss."

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action by plaintiffs to recover upon a policy of fire insurance. Plaintiffs introduced their evidence and rested their case whereupon the court granted a nonsuit on motion of defendant. Plaintiffs appeal from the judgment and from an order denying a motion for a new trial. Reversed.

Judgment of the lower court reversed and cause remanded, with instruction. Costs awarded in favor of appellants.

Daniel Needham, for Appellants.

The facts as alleged in plaintiff's amended complaint and established by the evidence makes a strong prima facie case and should have been submitted to the jury. (Black v City of Lewiston, 2 Idaho 276, 13 P. 80; Kroetch v. Empire Mill Co., 9 Idaho 277, 74 P. 868; Idaho Milling Co. v. Kalanquin, 7 Idaho 295, 62 P. 925; Kansteiner v. Clyne, 5 Idaho 59, 46 P. 1019; Pearlstine v. Westchester Fire Ins. Co., 70 S.C. 75, 49 S.E. 4, and cases cited.)

Every ground set forth in defendant's motion for nonsuit is matter of defense, and plaintiffs were not called upon to meet the said separate defenses until they were proved, at least prima facie. (Wallingford v. Columbia & G. R. Co., 26 S.C. 258, 2 S.E. 19.)

Upon a motion for nonsuit, everything will be deemed to be proved which the evidence tends to prove. (Nord v. Boston & M. Con. Copper & Silver Min. Co., 30 Mont. 48, 75 P. 681; State v. Benton, 13 Mont. 306, 34 P. 301; Later v. Haywood, ante, p. 78, 85 P. 494.)

The evidence was sufficient to entitle the plaintiffs to a submission of the issues to the jury. (Nute v. Hartford Fire Ins. Co., 109 Mo.App. 585, 83 S.W. 83.)

Waiver is a question of fact to be determined by the jury. (Exchange Bank v. Thuringia Ins. Co., 109 Mo.App. 654, 83 S.W. 534; Ehrlick v. Aetna Life Ins Co., 88 Mo. 249; Okey v. State Ins. Co., 29 Mo.App. 105; Stiepel v. German etc. Ins. Co., 55 Mo.App. 224.)

We cite further on question of waiver the following: McBride and Other v. Republic Fire Ins. Co., 30 Wis. 562: Bellevue Roller Mills Co. v. London & L. Fire Ins. Co., 4 Idaho 307, 39 P. 196; Miner v. Phoenix Ins. Co., 27 Wis. 693, 9 Am. Rep. 479; Campbell v. American Fire Ins. Co., 73 Wis. 100-110, 40 N.W. 661; Harriman v. Queen Ins. Co., 49 Wis. 71; Lansing v. Commercial Union Assur. Co., 4 Neb. (Unofficial), 140, 93 N.W. 756; King v. Hekla Fire Ins. Co., 58 Wis. 508, 17 N.W. 297; Faust v. American Fire Ins. Co., 91 Wis. 158, 51 Am. St. Rep. 876, 64 N.W. 883, 30 L. R. A. 703.

The fact that the real estate was a homestead entry and final proof had not yet been made would not defeat the recovery of insurance on property situate thereon, provided the assured had an insurable interest therein. (Smith v. Phoenix Ins. Co., 91 Cal. 323, 25 Am. St. Rep. 191, 27 P. 738, 13 L. R. A. 475; Grange Mill Co. v. Western Assur. Co., 118 Ill. 396, 9 N.E. 274; Davis v. Phoenix Ins. Co., 111 Cal. 409, 43 P. 1115; German Ins. Co. v. Gueck, 130 Ill. 345, 23 N.E. 112, 6 L. R. A. 835; Kenton Ins. Co. v. Wiggington, 89 Ky. 330, 12 S.W. 668, 7 L. R. A. 81.)

If furnishing proofs of loss was material, after company denied all liability on other grounds, receiving such proofs and not returning same or objecting thereto is a waiver of that condition. (Commercial Union Assur. Co. v. Hocking, 6 Cent. Rep. 915, 115 Pa. 407, 2 Am. St. Rep. 562, 8 A. 589; Martison v. North British & M. Ins. Co., 64 Mich. 372, 31 N.W. 291; German Fire Ins. Co., 64 Mich. 372, Titus v. Glens Falls Fire Ins. Co., 81 N.Y. 419; Gans v. St. Paul F. & M. Ins. Co., 43 Wis. 109, 28 Am. Rep. 535; Farnum v. Phoenix Ins. Co., 83 Cal. 246, 17 Am. St. Rep. 233, 23 P. 869; Long Island Ins. Co. v. Great Western Mfg. Co., 2 Kan. App. 377, 42 P. 739; Breedlove v. Norwich Union Fire Ins. Soc., 124 Cal. 164, 56 P. 770-772.)

Plaintiffs have never parted with title to said policy, but have always been the owners thereof.

The defendant cannot avoid liability under said policy on account of the indorsement thereon. (Carroll v. Boston Marine Ins. Co., 8 Mass. 515; Insurance Co. of Pennsylvania v. Phoenix Ins. Co., 71 Pa. 31; Bidend v. L. & L. P. & L. Ins. Co., 30 Cal. 76; True v. Manhattan Fire Ins. Co., 26 F. 83; Ellis v. Kreutzinger, 27 Mo. 311, 72 Am. Dec. 270; Wakefield v. Martin, 3 Mass. 558.)

James E. Babb, for Respondent.

The plaintiff proved the execution of the contract, and the defendant's cross-examination was germane in so far as it elicited circumstances to show that the contract never took effect. (Austin v. Mutual Reserve Fund Assn., 132 F. 555; Wilcox v. Continental etc. Ins. Co., 85 Wis. 193, 55 N.W. 188.)

A nonsuit was properly granted because the evidence showed that the plaintiffs had not either a sole nor an unconditional title, nor a fee simple title to the ground upon which the building stood. Plaintiffs had not, nor either of them, the legal title, nor had they any equitable title. (In re Millers' & Manufacturers' Ins. Co. (Minn.), 106 N.W. 485; Waller v. Northern Assur. Co., 10 F. 232, 2 McCrary, 637; Barnard v. National Fire Ins. Co. of Hartford, 27 Mo.App. 26; American Ins. Co. v. Barnett, 73 Mo. 364, 39 Am. Rep. 517; Clay Fire & Marine Ins. Co. v. Manufacturers' Co., 31 Mich. 346; Aetna Ins. Co. v. Holcomb, 89 Tex. 404, 34 S.W. 915; Wilcox v. Continental Ins. Co., 85 Wis. 193, 55 N.W. 188; Fox v. Queen Ins. Co., 124 Ga. 948, 53 S.E. 271.)

Plaintiff had no cause of action because of the chattel mortgage upon part of the insured property at the time of the issuance of the policy. This proposition depends for its force upon the condition of the policy providing that if such mortgage exist, without the consent indorsed upon the policy, the policy shall be void in its inception. (13 Am. & Eng. Eney. of Law, 2d ed., 258.)

Under the provisions in this policy, information given to any agent of conditions of the title, or existence of a mortgage, would not save the policy from invalidity in the absence of an indorsement of the company's consent in writing upon the policy, in accordance with the terms thereof. (Northern Assur. Co. v. Grandview Bldg Assn., 183 U.S. 308, 46 L.Ed. 213, 22 S.Ct. 132; Deming...