Flanaghan v. Phenix Ins. Co.

• Decision Date: 25 November 1896
• Citation: 42 W.Va. 426
• Parties: Flanaghan v. Phenix Ins. Co.
• Court: West Virginia Supreme Court

42 W.Va. 426

Flanaghan

v.Phenix Ins. Co.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 189t> Decided Nov. 25, 1896.

Insurance Policies Proofs of Loss Burden of Proof.

The burden of proving compliance with the necessary requirements of an insurance policy as to proofs of loss, or the waiver of such compliance on the part of the company, is on the insured; and, if he fails to establish the same by a preponderance of evidence, his action must fail.

P. W. Morris for plaintiff in error, cited 35 W. Va. 667.

Freer & Robinson for defendant in error, cited 35 W. Va. 667; 39 W. Va. 658; 6 W. Va. 438, 508; 41 W. Va. 229.

Dent, Judge:

Zimri Flanaghan instituted suit in the Circuit Court of Ritchie county on a tire insurance policy against the Phenix Insurance Company.

The company filed its plea in bar, claiming that plaintiff had not complied with the conditions of the policy, especially clause 9 thereof, which is in the following words, to wit (in so far as involved in this suit): "(9) Persons sustaining loss or damage by fire shall forthwith give notice of said loss in writing to the company, and, within thirty days of the occurrence of said loss, render a particular account of euch loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property, and their interest therein, for what purpose, and by whom the building herein described, or containing the property herein specified, and the several parts thereof, were used at the time of the loss, when and how the fire originated; and shall also produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the tire, not concerned in the loss as a creditor or otherwise, nor related to the assured) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property herein specified, to the amount which such magistrate or notary public shall certify. * * * And until such notice is given, particular account and certificate produced, examinations and appraisals permitted by the assured, the loss shall not be payable. The company reserves the option to take the whole or any part of the personal property herein specified at its appraised value, or to repair, rebuild, or replace the property lost or damaged, with other of like kind and quality, within a reasonable time, giving notice of their intention so to do within sixty days after the receipt of the proof herein required."

The plaintiff replied: (1) That he had complied with the provisions of such clause; (2) that defendant had waived compliance therewith. The issue having been made up, the case was submitted to a jury, which found for defendant.

After the evidence had been heard on both sides, the court, at the instance of the defendant, over the objection of the plaintiff, among others, gave the two following instructions, to wit: "No. 2. If the jury believe from the evidence that the plaintiff did not render to the defendant company a particular statement of the loss within 30 days thereafter, clearly showing, as required by clause 9 of the policy: (1) A particular account of said loss, signed and sworn to by the plaintiff, Zimri Flanaghan. (2) What other insurance had been made on said property, if any. (3) The actual cash...