Fid. & Cas. Co. of New York v. Sanders

• Decision Date: 18 February 1904
• Citation: 70 N.E. 167,32 Ind.App. 448
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. SANDERS.
• Court: Indiana Appellate Court

32 Ind.App. 448

70 N.E. 167

FIDELITY & CASUALTY CO. OF NEW YORK

v.SANDERS.

Appellate Court of Indiana, Division No. 1.

Feb. 18, 1904.

Appeal from Circuit Court, Vermillion County; A. F. White, Judge.

Action by Flora Sanders against the Fidelity & Casualty Company of New York. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Rhoads & Aikman, for appellant. Conley & Conley, for appellee.

ROBINSON, J.

Suit by appellee upon a policy insuring against loss by burglary. Trial by court, and finding and judgment for appellee. Errors are assigned on overruling a demurrer to each of the two paragraphs of complaint, sustaining a demurrer to the second and third paragraphs of answer, and the refusal of a new trial. Against the sufficiency of each paragraph of the complaint it is argued that it is not averred that appellee had performed all the conditions on her part to be performed, nor are facts pleaded sufficient to constitute an excuse for their nonperformance. The averment in each paragraph is “that afterward the plaintiff duly notified the said defendant of said loss, and the defendant sent an adjuster to adjust the same, but said adjuster refused to pay and indemnify the plaintiff for such loss, although she has frequently demanded the same.” The policy provides that the assured, upon the occurrence of a burglary, shall give immediate notice thereof to the company's agent, or to the home office, and to the police authorities; that, in the event of a claim for loss under the policy, the claim shall be made forthwith in writing, setting forth a particular account of the manner in which the burglary was committed, the date, the damage done to the property insured, the assured's interest in the property, other concurrent or similar insurance, and that the company, upon application therefor, will provide the assured with a blank for such statement of loss; that the company shall not be held to have waived any provision or condition of the policy, or any forfeiture thereof, by furnishing such blank, or by any act taken in connection with the investigation of any claim; that no suit shall be brought under the policy until three months after the particulars of the loss, as before required, have been furnished, nor at all unless commenced within twelve months after date of the burglary.

The provisions above set out are conditions precedent to appellee's right to recover on the policy. It is essential to the sufficiency of the complaint that it should affirmatively show a performance of these conditions, or that a performance had been waived. Home Ins. Co. v. Duke, 43 Ind. 418;Commercial, etc., Co. v. State ex rel. 113 Ind. 331, 15 N. E. 518;Indiana Ins. Co. v. Capehart, 108 Ind. 270, 8 N. E. 285;Prudential Ins. Co. v. Meyers, 15 Ind. App. 339, 44 N. E. 55;Phenix Ins. Co. v. Rogers, 11 Ind. App. 72, 38 N. E. 865. Section 4923, Burns' Rev. St. 1901, relating to foreign insurance companies doing business in this state, and in force when the policy was issued, prohibits such company from inserting certain conditions in its policy; among others, that the insured shall give notice of the loss forthwith, or within the period of time less than five days. The statute provides that any condition inserted in a policy contrary to its provisions shall be void. Under this statute the provisions in the policy in suit that the insured shall give immediate notice of the burglary, and shall forthwith furnish proof of loss, are invalid; but, having been inserted in the policy, the most that can be required by the insurer of the insured is that the insured shall use reasonable diligence in giving the notice and furnishing proof of loss. Phenix Ins. Co. v. Rogers, 11 Ind. App. 72, 38 N. E. 865;Germania Fire Ins. Co. v. Columbia, etc., Co., 11 Ind. App. 385, 39 N. E. 304;Insurance Co. v. Brim, 111 Ind. 281, 12 N. E. 315;Pickel v. Phenix Ins. Co., 119 Ind. 292, 21 N. E. 898. Appellee then was required to give the notice and furnish proofs of loss within a reasonable time after the burglary, and the complaint should show that this was done, or an excuse for not so doing. Ordinarily, what is a reasonable time is a question of fact, but in determining the sufficiency of the facts pleaded as against the demurrer it may be a question of law. The complaint, after stating the facts of the burglary, which it is averred was on May 24, 1901, states “that afterwards” appellee duly notified appellant of the loss. Keeping in view the general rule that a pleading must be construed most strongly against the pleader, and the fact that this suit was begun February 27, 1902, there is nothing in the pleading to indicate at what time between the occurrence of the burglary and the filing of the suit the notice was given. There is no more authority for concluding that the notice was given a few days after the burglary than that it was given a few days before the suit was filed, nine months after the occurrence. So far as disclosed by the pleading, the notice may have been given at any time between these two dates. If the notice was given eight or nine months after the burglary-and we cannot presume, in aid of the pleading, that it was not so given-the notice was not within a reasonable time. It has been held that an unexplained delay of 50 days in giving notice of a loss under a fire policy requiring notice to be given within a reasonable time was an unreasonable delay. Pickel v. Phenix Ins. Co., 119 Ind. 291, 21 N. E. 898. See, also, Railway, etc., Assur. Co. v. Burwell, 44 Ind. 460;Whitehurst v. North Carolina Ins. Co., 52 N. C. 433, 78 Am. Dec. 246;Inman v. Western Fire Ins. Co., 12 Wend. 452;Trask v. State Fire, etc., Ins. Co., 29 Pa. 198, 72 Am. Dec. 622.

The complaint does not contain the general averment that appellee has performed all the conditions on her part to be performed, nor does it contain anything equivalent to this. The policy not only requires...