Flanaghan v. Phenix Ins. Co

• Decision Date: 25 November 1896
• Citation: 26 S.E. 513,42 W.Va. 426
• Parties: FLANAGHAN. v. PHENIX INS. CO.
• Court: West Virginia Supreme Court

26 S.E. 513

42 W.Va. 426

FLANAGHAN.

v.PHENIX INS. CO.

Supreme Court of Appeals of West Virginia.

Nov. 25, 1896.

Action on Policy—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.

(Syllabus by the Court.)

Error to circuit court, Ritchie county.

Action by Zimri Flanaghan against the Phenix Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.

P. W. Morris, for plaintiff in error.

Freer & Robinson, for defendant in error.

DENT, J. Zimri Flanaghan instituted suit in the circuit court of Ritchie county on a fire 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 thefollowing 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 such 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 fire, 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.

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...