Dade v. Aetna Insurance Co
| Decision Date | 31 July 1893 |
| Citation | 56 N.W. 48,54 Minn. 336 |
| Parties | Joseph Dade v. Aetna Insurance Co |
| Court | Minnesota Supreme Court |
Argued by appellant, submitted on brief by respondent June 15, 1893.
Appeal by defendant, Aetna Insurance Company, from an order of the District Court of Itasca County, G. W. Holland, J., made December 26, 1892, denying its motion for a new trial.
Order reversed.
Kueffner & Fauntleroy and J. P. Douglas, for appellant.
True & Wetherby, for respondent.
This action was upon a policy to recover for loss and damage by fire to the property covered by it on the 23d day of June 1892. The terms and conditions of the policy are not set forth in the complaint, but it alleges, generally, that the plaintiff had performed all the conditions of the insurance on his part, which the answer denies. Upon the trial the plaintiff, who was called as a witness, was allowed to state generally that he had complied with all the conditions of the policy, without producing the policy in evidence. This error was prejudicial; unless it is made to appear from the record that by subsequent competent evidence it was cured. This, we think, was not done. It is not questioned that the conditions of the policy require that notice of loss by the fire shall be immediately given to the company, and that within sixty days a statement of the value of each item of property, amount of loss thereon, origin of the fire, etc shall be rendered to the company. In the course of the trial plaintiff offered a certain exhibit, copy of proofs of loss, claimed to have been sent to the company by mail at Hartford, Conn., which was received as secondary evidence of the original. The only foundation laid for the introduction of the evidence was a verbal notice given to defendant's attorneys on the trial to produce the original proofs of loss, and a request to the court to require them to produce the original. It did not appear that the original was in the possession of the counsel for the defendant, or that they could produce the same at the trial. The notice was insufficient, and secondary evidence was improperly received. On the other hand proof that the required notice and proofs were properly mailed to the company at their place of business, or the home office, is presumptive evidence that they were received in due course of mail, until the contrary appears. The evidence was sufficient proof that certain documents were...
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