Great American Ins. Co., New York v. Scott, 12561.
| Citation | 299 P. 1051,89 Colo. 99 |
| Decision Date | 04 May 1931 |
| Docket Number | 12561. |
| Parties | GREAT AMERICAN INS. CO., NEW YORK, v. SCOTT. |
| Court | Supreme Court of Colorado |
Rehearing Denied June 1, 1931.
Error to District Court, City and County of Denver; Geo. F Dunklee, Judge.
Action by L. R. Scott against the Great AmericanInsurance Company New York. Judgment for plaintiff, and defendant brings error.
Affirmed.
John T. Bottom, of Denver, for plaintiff in error.
Rees D Rees and C. E. Wampler, both of Denver, for defendant in error.
L. R Scott, in the Denver district court, sued to recover damages to his wheat crop in Eastern Colorado occasioned by hail and covered by two insurance policies of the defendant, Great American Insurance Company, New York. He had judgment on a verdict for $2,193.38, to review which the insurance company prosecutes this writ.
It is urged (1) that the motion for change of venue should have been granted, (2) that the complaint fails to state sufficient facts, (3) that waiver cannot be proven under general allegation of performance, (4) that the evidence is insufficient.
1. The motion sought a change of venue to Yuma county charging that the real property involved in the action was there situate; that the hail insurance was payable there; and that the convenience of witnesses necessitated the change. The motion was properly denied. The suit is for breach of contract, and not for damages to real property. The fact that the crops were growing on plaintiff's land in Yuma county is immaterial. The defendant being a nonresident of Colorado, the proper county in which to institute action was that 'designated in the complaint.' Code 1921, § 29. New York Life Co. v. Pike, 51 Colo. 238, 117 P. 899. It was not error to deny a motion for change of venue on the ground of convenience of witnesses because an abuse of discretion was not shown. Enyart v. Orr, 78 Colo. 6, 238 P. 29.
2. The complaint charged that defendant executed and delivered two hail insurance policies insuring the plaintiff against damages to his crops in the aggregate amount of $3,120; that on June 25, 1928, a hailstorm damaged his crops in the aggregate amount of $2,185.76; 'that the plaintiff furnished the defendant on the 27th day of June, 1928, a written notice of loss and otherwise performed all of the conditions of said policy on his part; that on or about the 6th day of August, 1928, the defendant appointed three adjustors who visited the fields and adjusted the loss and notified this plaintiff that his loss by hail as aforesaid was in the several sums hereinbefore set out; that said adjustment was made in writing by adjustors selected and appointed by the defendant company as the defendant's agents in relation thereto and was accepted by this plaintiff and agreed to by both parties; that within a few days thereafter and prior to the 15th of August, 1928, the defendant company repudiated said adjustment and informed this plaintiff that they would not be bound thereby and that they would not recognize the plaintiff's loss and denied all liability therefor; that the defendant has not paid said loss nor any part thereof.'
It is contended that the complaint is defective because it does not charge that the plaintiff duly performed all the conditions of the contract. The allegations of the complaint substantially complying with the Code, § 72, relative to performance, the complaint is not vulnerable on this ground. National Surety Co. v. Queen City Land & Mortgage Co., 63 Colo. 105, 164 P. 722; Board of Public Works v. Hayden, 13 Colo.App. 36, 56 P. 201. If it were otherwise, still the charge of adjusted losses and repudiation thereof by the insurance company was sufficient allegation of waiver of such performance. Helvetia Ins. Co. v. Allis Co., 11 Colo.App. 264, 53 P. 242.
3. Waiver may be proven under a general allegation of performance. Atlantic Ins. Co. v. Manning, 3 Colo. 224; Southern Surety Co. v. Farrell, 79 Colo. 53, 244 P. 475. However waiver was pleaded by alleging an adjustment.
4. The record discloses that after the two insurance policies were issued and on June 7, 1928, plaintiff's crops were slightly damaged by hail for which recovery was not sought by plaintiff; that on June 25th another hailstorm severely damaged plaintiff's crops. Notice of the second loss was promptly given by plaintiff, but no proof of loss as required by the policy was furnished. Evidence introduced by the plaintiff supported his contention that the various conditions of the policy required to be performed by the insured were not performed because defendant refused to pay for the loss occasioned by the second hailstorm, unless the plaintiff signed a nonwaiver agreement covering the first. Subsequently D. D. Thomas, one of the adjusters of defendant authorized John Brenner, another adjuster of said company, to select appraisers and make an...
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