Careve v. Phoenix Ins. Co. of Hartford
| Decision Date | 12 May 1923 |
| Docket Number | 5110. |
| Citation | 215 P. 235,67 Mont. 236 |
| Parties | CAREVE v. PHNIX INS. CO. OF HARTFORD. |
| Court | Montana Supreme Court |
Appeal from District Court, Custer County; S.D. McKinnon, Judge.
Action by Tonsho Careve against the Ph nix Insurance Company of Hartford. Judgment for defendant, and plaintiff appeals. Affirmed.
Loud & Leavitt, of Miles City, for appellant.
Geo. W Farr, of Miles City, for respondent.
Tonsho Careve, the plaintiff, in October, 1919, obtained from the defendant, through its agent, Security Abstract & Title Company, a fire insurance policy covering his buildings and contents. In November following the building and contents were burned. Defendant having refused to pay, plaintiff brought this suit. By consent of the parties the cause was tried to the court sitting without a jury. Judgment was entered for defendant, from which plaintiff has appealed.
When plaintiff applied for insurance, the business was transacted between him and D. M. Ferguson, who was manager and secretary of the agent company. This company, a Montana corporation was at all times the agent of the defendant insurance company, which was a foreign corporation, acting under a certificate of authority executed by the insurance company. Under the certificate of authority the agent company had full power during the pleasure of the insurance company to receive proposals for insurance against loss or damage by fire on property located in Miles City and vicinity, to receive premiums therefor, to countersign and issue policies of insurance thereon, to consent to transfers or make indorsement thereon, and to renew the same subject to the rules and regulations of the insurance company or its general agent at San Francisco.
On the morning after the fire the plaintiff went to see Mr. Ferguson and told him about the fire. Then Ferguson and the plaintiff went to the burned building and examined the ruins. On the way back to his office Ferguson asked the plaintiff what was lost and upon being told, said: "Write it down and bring it to the office." Plaintiff then made out a statement consisting of a list of the property which was in the building, together with the values fixed by him on the separate articles, and gave it to Ferguson. It was not subscribed or sworn to. Ferguson asked for the policy, which the plaintiff produced and delivered to him. Plaintiff also left his address with Ferguson at the latter's request. Ferguson said he would send the statement to the insurance company, which would send word to the insurance adjuster, and upon the adjuster's arrival he (Ferguson) would let the plaintiff know so he might meet the adjuster. At that time plaintiff asked Ferguson if he wanted any further information, to which Ferguson replied in the negative. Nothing else was done by plaintiff by way of giving notice of loss or proof of loss to the defendant company.
The policy of insurance provides that, if fire occur, the policy holder shall give immediate notice of any loss in writing to the company, "forthwith separate damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon," and within 60 days after the fire, unless such time is extended in writing, shall render a statement, signed and sworn to by the insured stating his knowledge and belief as to the time and origin of the fire, with other information.
The court found, among other things, that the insured did not give the required notice nor render the statement; that there had not been a waiver by the company, and that the Security Abstract & Title Company did not have authority to waive notice of loss or proof of loss; that the certificate of authority issued to the agent company was the sole extent of the power and authority of that company; "that there is no evidence of any apparent authority or custom or other facts or circumstances tending to show that the defendant company had clothed its agent with any additional authority."
The insurance policy constituting a contract between the parties the plaintiff is bound by its provisions. Notice and proof of loss, being conditions precedent to the right of recovery, must be made prior to commencing action. Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 190 P. 993, 16 A. L. R. 601.
While counsel for plaintiff admit that their client did not give notice of loss in writing nor render the sworn statement in terms required by the policy, they insist that the agent of the company was in effect a general agent of the insurance company, and that by reason of what...
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