Downs v. German Alliance Ins., Co.
| Decision Date | 12 October 1906 |
| Citation | 67 A. 146,22 Del. 166 |
| Court | Delaware Superior Court |
| Parties | WILLIAM H. DOWNS v. GERMAN ALLIANCE INSURANCE COMPANY and GERMAN AMERICAN INSURANCE COMPANY |
Superior Court, Sussex County, October Term, 1906.
SUMMONS CASE (No. 251, October Term, 1904.)
Action to recover on insurance policies for the value of certain sewing machines of the plaintiff destroyed by fire in a building or factory in the town of Georgetown, on April 7 1904.
The plaintiff's evidence disclosed the following facts: That the policy, which was for $ 1,000, was dated December 12 1903, and issued for one year. That Frank W. Donovan--who was admitted by defendants' counsel to be the local agent of the defendants for the purpose of soliciting insurance--first learned of the fire and went out and notified the plaintiff of the fact; that the plaintiff inquired as to what was necessary for him to do under the policy in order to secure his insurance and that Mr. Donovan told him there was nothing for him to do but that he (Donovan) would give notice to the company and that they would come down and adjust the loss and pay the amount of the policy. That several times during the period of sixty days next ensuing the plaintiff called upon Donovan and asked him when the adjuster was coming down and was informed by Donovan that he had written to the adjuster and had heard from the latter, who was then sick, but who would come down as soon as he was able to do so. That within a few days after sixty days had elapsed the adjuster having failed to come down and adjust the loss, the plaintiff placed the matter in the hands of his attorney and suit was entered. That thereafter plaintiff and his counsel called upon Donovan and at the latter's suggestion formal proofs of loss were made out under said Donovan's direction and handed to him; that the company refused to pay the claim.
On cross examination the plaintiff admitted that at the time of the fire the sewing machines in question were in a leased building and that they were being operated for the purpose of sewing together or making up shirt patterns which were shipped to him in bulk and after being finished were returned to the parties who had shipped the patterns; that in the building were engines, shafting and necessary machinery for running the sewing machines, the same being operated by steam power; that the said sewing machines were purchased from the Singer Sewing Machine Company, one-third being paid down when the machines were delivered and notes being given payable in eight months for the balance, the company to hold the said machines as security until the balance was paid. That after the machines were destroyed by fire, plaintiff paid to the company the balance due upon the same. The plaintiff further stated that there was no chattel mortgage on the machines in question, but admitted that the factory during the insured period and preceding the fire had been shut down as long as ten consecutive days on account of the severity of the weather.
MOTION FOR NONSUIT.
When the plaintiff rested, counsel for defendant moved for a nonsuit upon the following grounds:
First. That from the plaintiff's evidence it appears that the interest of the insured in part of the property insured was other than unconditional and sole ownership, which makes the entire policy on which he sues void under the conditions thereof as provided in lines 16 and 17. The evidence shows that the insured was a lessee of a large part of the property mentioned in the policy.
This provision means ownership at date of policy.
3 Joyce on Ins. 2048; 165 Pa. St. 298.
Some of the authorities sustaining the position that if the ownership of the property at the time of the insurance is other than unconditional and sole the policy is void, are:
Vance on Ins. 442; 13 Am. & Eng. Ency. of Law, 2d Ed., 233; 55 Ill.App. 275 (); 27 Mo.App. 26 (); 66 Cal. 361 (); 77 Ia. 319; 70 Md. 536 (conditional sale).
Second. Because no notice and proof of loss conforming to the requirements of the policy of insurance were given and filed with the company as required by the terms of the policy.
Lines 67 to 76 inclusive.
The policy requires immediate notice of loss to be given by the insured in writing to the company. The fire occurred April 7 1904. The proof of notice is notice to the local agent of the company. Notice must be given to the company.
Line 67; Vance on Ins. 504; 18 Wis. 407.
Must be immediate notice, which means within a reasonable time.
The policy also requires that the insured ...
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Murray v. Lititz Mutual Insurance Company
... ... 1392, and cases there cited. Compare ... Emory v. Glens Falls Ins. Co., 23 Del. 101, 7 ... Penne. 101, 76 A. 230; Downs v. German Alliance ... ...