La Bonte v. Mutual Fire & Lightning Ins. Co. of Richland County
| Decision Date | 30 November 1925 |
| Docket Number | 5763. |
| Citation | 241 P. 631,75 Mont. 1 |
| Parties | LA BONTE v. MUTUAL FIRE & LIGHTNING INS. CO. OF RICHLAND COUNTY. |
| Court | Montana Supreme Court |
Appeal from District Court, Richland County; Frank P. Leiper, Judge.
Action by Charles La Bonte against the Mutual Fire & Lightning Insurance Company of Richland County, a corporation. From a judgment for plaintiff, defendant appeals. Affirmed.
C. E Collett, of Sidney, for appellant.
F. J Matoushek and L. V. Ketter, both of Sidney, for respondent.
The defendant company has appealed from a judgment awarding plaintiff the sum of $3,100, with interest from November 24 1923, and costs, on a fire loss covered by a policy of insurance written by defendant company.
It appears from the record that on November 22, 1922, the defendant, a "mutual" company operating only in Richland county, in consideration of a membership fee in the company and an additional premium thereon, issued to plaintiff, who thereby became a member of the company, a fire policy on his ranch house with its contents, and upon his barn, on a certain quarter section described, for the term of five years, the risk being $2,800 on the house, $425 on its contents, and $400 on the barn; that on November 22, 1923, while such policy was in full force and effect, the house with all its contents was destroyed by fire, but the barn was not injured.
The policy, which is made a part of the complaint filed herein, made no mention of proof of loss, but provides that the insurance is subject to the provisions of the company's by-laws, which, in so far as they affect the questions here raised, are:
Although plaintiff's lands and improvements were mortgaged, no "mortgagee clause" was attached to the policy.
On December 18, 1923, plaintiff executed in duplicate, and delivered to the defendant and to his mortgagee, the following assignment:
"To Chris Christiansen, President, and Harry T. Hanson, Secretary, Mutual Fire & Lightning Insurance Company of Richland County, Montana: In consideration of a mortgage given to C. L. Dempster of Lake City, Minn., during the year 1917, with the understanding that the buildings on S.E. 1/4, sec. 12, Twp. 25, Rge. 58, be insured during the life of the mortgage for the benefit of the mortgagee, I hereby assign all my rights in insurance covering the buildings as stated in policy No. 417, dated November 2, 1922, to said C. L. Dempster, his assigns, and you are hereby authorized to make a draft in payment of loss covered by said policy payable to C. L. Dempster or to C. L. Dempster and myself jointly.
Charles La Bonte.
Please attach to your record."
The assignment, mailed to Dempster, the mortgagee, was for reasons not appearing in the record returned to plaintiff and was by him produced on the trial. All testimony as to the contents of the letter accompanying its return was excluded on defendant's objection thereto.
On January 15, 1924, defendant notified plaintiff as follows: "Your claim of November 25, 1923, for $3,186.00 has been disallowed." Thereupon plaintiff commenced action, and in his complaint alleged, by separate paragraphs; (1) The corporate capacity of defendant; (2) the ownership in himself of all property described in the policy; (3) that the policy was in full force and effect at the time of the fire; (4) the total loss of all property covered; and (5) that he duly furnished the company with proof of loss and performed all conditions imposed upon him by the policy. He prayed for judgment in the full sum of the policy, with interest from the date of the fire.
To the complaint defendant interposed a general demurrer, which was by the court overruled. Thereafter, by answer, defendant admitted the allegations of paragraphs 1, 2, and 3 of the complaint; denied the allegations of paragraphs 4 and 5 thereof; and affirmatively alleged that but a portion of the property insured was destroyed by the fire, and that by plaintiff's own willful and fraudulent act. Although defendant had in its possession the duplicate assignment to Dempster, the answer contained no allegation to the effect that plaintiff was not the real party in interest.
Plaintiff by reply denied the affirmative allegations of the answer, and at the opening of the trial amended paragraph 3 of his complaint by adding thereto the words: "And that the plaintiff is now the owner and holder of the said policy of insurance." By agreement in open court the admission in the answer of the allegations of paragraph 3 was extended to the amendment.
Plaintiff's proof showed that the house and contents, of a total value of approximately $3,100, were destroyed, but that the barn was not injured, that on the day following the fire plaintiff notified the secretary of the company of his loss, and that the day following such notice, the president, the secretary, and one other member of the company appeared at the scene of the fire and interrogated the plaintiff as to items destroyed and their value, which latter was roughly given, and that all statements were taken down by the secretary. The list thus furnished covered all items with the exception of a small amount of wearing apparel belonging to plaintiff's wife, which he agreed to list later, but did not. Plaintiff was not advised by the officers of the company, then or at any other time, that anything further was required of him, other than that he should later furnish a list of the unimportant items which he was not then able to give them.
At the close of plaintiff's case, defendant moved for judgment of nonsuit upon the sole ground that plaintiff was not the real party in interest. The motion was overruled. Defendant thereupon produced evidence upon which the jury might have found that the plaintiff had willfully set fire to his property.
The secretary testified that the three men who called upon plaintiff after the fire constituted the committee appointed, pursuant to the by-laws, by the president for the purpose of appraising the loss and were there for that purpose. No witness testified that proof of loss was not furnished the company.
On rebuttal the plaintiff explained certain suspicious circumstances appearing from testimony on the part of the defendant, denied all knowledge of the origin of the fire, and testified that he did all in his power to save the property.
At the close of all the evidence, defendant moved the court to instruct the jury to return a verdict in favor of defendant on the ground that plaintiff, through his failure to furnish formal proof of loss, was barred from a recovery in the action. This motion was overruled. On the conflicting evidence the jury returned its verdict on February 18, 1925, in favor of plaintiff and for the sum of $3,100, with interest thereon at 8 per cent. from November 23, 1923. Judgment was entered thereon and notice thereof given defendant on February 20, 1925. On March 2, 1925, defendant served and filed notice of intention to move for a new trial, which notice was by the court, on motion of plaintiff, stricken from the files on the ground that it was not filed within time.
Defendant's specifications of error are that the court erred (1) in overruling its motion for nonsuit; (2) in overruling its motion for a directed verdict; (3) in rendering and entering its judgment; and (4) in granting plaintiff's motion to strike the notice of intention to move for a new trial.
1. The plaintiff asserts that, as the appeal before us is from the judgment alone, this court cannot consider the sufficiency of the evidence to support the judgment, citing Withers v. Kemper, 25 Mont. 432, 65 P. 422, or at most can only examine the record to determine whether there is any evidence to support the judgment, citing Dawes v. City of Great Falls, 31 Mont. 9, 77 P. 309.
In the first case cited, Mr. Justice Milburn, speaking for the court, called attention to the fact that the only attack made upon the evidence was by motion to strike, and that no motion for judgment was made, and thereafter said:
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