Martoni v. Massachusetts Fire & Marine Ins. Co.

• Decision Date: 25 July 1927
• Citation: 138 A. 462,106 Conn. 519
• Parties: MARTONI v. MASSACHUSETTS FIRE & MARINE INS. CO.
• Court: Connecticut Supreme Court

138 A. 462

106 Conn. 519

MARTONI v. MASSACHUSETTS FIRE & MARINE INS. CO.

Supreme Court of Errors of Connecticut.

July 25, 1927

Appeal from Court of Common Pleas, Fairfield County; Clarence R Hall, Special Judge.

Action by James Martoni against the Massachusetts Fire & Marine Insurance Company on a policy of insurance against theft of plaintiff's automobile. Tried to the jury. Verdict and judgment for plaintiff. From the denial of its motion to set aside the verdict and for errors in the charge and failing to charge, defendant appeals. No error.

Maltbie J., dissenting.

Burden was on insurer to set up insured's noncompliance with conditions of policy sued on.

Louis Feinmark and Nathan Reback, both of New Haven, for appellant.

Henry Greenstein and Harry Schwartz, both of Bridgeport, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and AVERY JJ.

WHEELER, C.J.

The complaint sets up that the defendant for a consideration executed to the plaintiff, the owner of an automobile, a policy of insurance upon its agreeing to pay him the value of the automobile up to $1,200 in the event of its loss by theft at any time between June 4, 1923, and June 4, 1924, and that on or about December 6, 1923, the automobile was stolen, and that at that time he furnished proofs of loss and performed all the conditions of the policy, and that defendant has not paid the loss.

The answer admits the making of the policy of insurance for the specified consideration and admits that it was stolen. It denies plaintiff's ownership and alleges that plaintiff was the lessee from the Long Company and that the policy covered not only the interests in the automobile of plaintiff, but of the Long Company. It further denies the giving of the proofs of loss and performance of the conditions of the policy. The defendant might have required plaintiff to set up the policy, but it chose to join issue without doing so. No obligation rested upon plaintiff at the trial to prove compliance with these various conditions. The burden was upon the defendant to set up specially such as it contested. Benanti v. Delaware Ins. Co., 86 Conn. 15, 18, 84 A. 109, Ann.Cas. 1913D, 826; Vincent v. Mutual Reserve Life Ass'n, 77 Conn. 281, 58 A. 963; Hennessy v. Metropolitan Life Ins. Co., 74 Conn. 699, 52 A. 490. We say in Benanti v. Delaware Ins. Co., supra:

" The plaintiff sustains his burden as to the conditions not specifically put in issue by the defense by proof of his interest, the issuance of the policy to him, the loss, and his compliance with the proofs of loss; as to those put in issue by the defense he sustains the burden by proof as in any case. The trial court, in effect, so instructed the jury. In so doing it followed our practice and our settled rule."

This defendant did in a " first special defense," viz.: The defendant, after receiving notice that the car had been stolen, made due search for the same and recovered the car in Philadelphia and notified plaintiff of this fact, but he refused to go to Philadelphia to retake the car. Thereafter defendant repaired the car in as good condition as it was prior to the theft and notified plaintiff that the car was in the city of New York at his disposal, but plaintiff refused to go to New York and take the car. Defendant brought the car to New Haven and then to Bridgeport and notified plaintiff that they were ready to turn the car over to him but he refused to retake it. Defendant also informed plaintiff at this time that, if there were any adjustments to be made so that the car would be in as good condition as it was prior to its theft, they would make them if plaintiff took the car, but he refused so to do. During the period of time defendant held the car, the Long Company, lessors under the lease of the car to plaintiff, notified defendant that plaintiff had failed to meet the requirements of the lease, and that under it the car belonged to them, and they subsequently took the car into their possession. The reply of plaintiff admitted that, after the car was in New Haven and Bridgeport, he refused to retake the car, and alleged that at this time the car was in need of extensive repairs and additions and that the same was in no respect in as good condition as the car was prior to the time of the theft. The rest of the special defense plaintiff either denied or alleged that he left defendant to its proof except that he alleges that the Long Company released plaintiff from any obligation to continue to make payments.

The condition of these pleadings is a practical admission by plaintiff that under this policy of insurance defendant had the right to recover and return this car to plaintiff in as good condition as it was prior to its theft. The defendant did recover the car and did offer to return it at these several places, but plaintiff refused to accept it upon the ground that it was not in as good condition as it was prior to the theft. The issues upon which the case was tried were whether the car was in as good condition as prior to the theft, whether defendant on its offer to return the car offered to pay plaintiff any sums necessary to put the car in the same condition it was in at the time it was stolen, and whether plaintiff had made adequate proof of proofs of loss and of damage.

The court charged that plaintiff under the pleadings must establish by a fair preponderance of the evidence:

" First, the contract; second, loss of the car; third, the failure of the defendant to return the car within a reasonable time; fourth,

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