Munson v. German Ins. Co.

• Decision Date: 22 March 1904
• Citation: 55 W.Va. 423
• Court: West Virginia Supreme Court
• Parties: Munson v. German Insurance Company.

55 W.Va. 423

Munson

v.German Insurance Company.

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1904

Decided March 22, 1904.

1. Pleadings Bill Evidence Discovery.

It is necessary that a mixed bill for discovery and relief show that the plaintiff has a good case for recovery or defense, in order to obtain discovery, (p. 425).

2. Notice of Loss by Mail.

Noti ce of loss may be given to an insurance company through the mail at the risk of the insured. Deposit of it in the mail is prima facie, but not conclusive, evidence of its reception by such company, (p. 425).

3. Insurance Co. Proof of Loss Notice.

If the furnishing of proof of loss is made by an insurance policy a condition precedent to action upon it, performance or waiver of-it must be shown before recovery can be had. feuch is the case where the policy provides that no action shall be brought until its conditions are complied with and it requires such proof of loss. (p. 426).

4. Bill of Discovery Corporation Officer.

A bill cannot be maintained against a corporation for discovery without making a proper officer of it a. party, (p. 427).

5. Fire Insurance Proof of Loss.

If a fire insurance policy provide that proof of loss shall be furnished within a given time, and that no action shall be brought upon it until such proof is furnished, and provide for its forfeiture for certain causes, but not for failure to furnish such proof of loss, failure to furnish such proof of loss within the given time does not wholly destroy all right of recovery, but only delays right of action; but action upon it cannot bebrought until such proof is furnished, (p. 427).

6. Fire Insurance Proof of Loss Notice.

Loss of a policy of fire insurance will not excuse compliance with the imperative requirements of the policy as to notice and proof of loss. (p. 428).

Appeal from Circuit Court, Randolph County.

Action by J. W. Munson against the German-American Fire Insurance Company. Decree for plaintiff, and defendant appeals.

Reversed.

C. W. Dailey, for appellant. W. B. Maxwell, for appellee.

Brannon, Judge:

J. W. Mnnson filed a bill in equity in the circuit court of Randolph county against German-American Insurance Company of New York, stating that the company had issued to him a policy of insurance for $1,000 upon his dwelling house; that the house was destroyed by fire, and that the policy was destroyed with it; that as scon as practicable after the fire he had informed the agent through whom he obtained the policy, of the destruction of the house, he not knowing the company's address, and the agent informed him that he was no longer agent for the company, but gave him the address; that the plaintiff then wrote the company a letter informing it of the fire, but receiving no reply, he placed the matter in the hands of an attorney, who wrote the company of the loss of the house and policy, and that the plaintiff did not know the demands of the policy as to what he should do, and asking what the company required of him in the way of proof of loss; that the company answered that this letter was the first information it had of the fire, and that the matter had been referred to its Baltimore agent; that the plaintiff asked this agent what was required of the plaintiff to secure a settlement of the claim, but both had failed to give him information. The bill states that the plaintiff is entitled to recover the full amount of the policy; that he believed that it was provided in the policy that before he had right to recover it was necessary for him to furnish some sort of proof of loss, but that he did not remember the provisions of the policy or what proof of loss was required; that he had so informed the company. The bill avers that the plaintiff had full proof to meet any requirement of the policy; that the company had an exact copy of the policy, and knew of its requirements. The bill asked that the company be required to make discovery as to requirements of the policy in order for the collection of the insurance money; that upon such discovery the plaintiff be allow- ed to furnish proof of his demand and that the amount of the insurance be decreed to him. A decree was entered requiring the company to make such discovery, and afterwards a decree was rendered compelling the company to pay the full amount of the policy, and the company has appealed.

The first question arises upon a demurrer to the bill. The court overruled the demurrer. Counsel for the company suggests that it is indispensable that to call for discovery the bill show a good case, a right of recovery, and that this bill does not show a god case, because it shows that the plaintiff knew that he had to do certain things as conditions precedent to recovery, namely, to give the company notice of loss, and to furnish statement of the loss. It is plainly necessary that a bill show a recoverable case to call for discovery. It must state "a case which will constitute a just ground for a suit or defense and its nature, * * such a case as will enable the plaintiff to recover in the action." Hogg's Eq. Proced. section 163; 6 Ency. PI. & Prac. 740; Story Eq. PI. section 319. This puts the question whether the bill does present a case for recovery. It is said that the bill admits, as it does, that Munson knew very well that he was called upon to give the company notice of the fire and also proof of the loss and its character and amount, and that the bill fails to state that he did so. The bill says that after writing to the local agent Munson wrote to the company of the fire at once. Prima facie this was sufficient notice, as a letter deposited in the mail properly addressed is presumed to reach the person addresed. Galloway v. Standard Co. 45 W. Va 237; 1 Joyce on Ins. sections 62, 3300. Thus so far as concerns notice of loss the bill is sufficient. Besides, the policy is not stated in the bill as to its provisions, and we cannot say what were its provisions. We do not know whether the failure to give notice of the fire was required within a particular time or whether it forfeited the contract. True, the bill says that it was necessary to recovery. This may be said to make it a precedent condition; but we do not know whether the failure to give notice of fire within a given time forfeited the policy. Therefore, as before suit notice of the fire was given, we cannot say that the demurrer was good so far as it concerns failure to give.notice of loss in due time, because notice appears to have been given, and also because we do not see that its delay forfeited the policy.

But how as to proof of loss? The bill makes no pretense that it was given or attempted to be given. This makes the bill bad, because it admits that a duty to furnish proof of loss rested on Munson, and the law is settled that such proof is indespensable to a suit for recovery. If a pure bill of discovery could be maintained upon a bill not averring that proof of loss had been furnished, still a bill for discovery and relief cannot be sustained without such averment. "If the furnishing of proofs of loss is a condition precedent to the bringing of action, performance or waiver of it must be shown." Kerr on Ins. 767. This bill is one of discovery and relief, not a pure bill of discovery. There is jurisdiction in equity regardless of discovery, since the bill states the loss of the policy; but there can be no relief upon a bill not stating that proof of loss was furnished or waived. It was error to overrule the demurrer and compel a discovery as no proof of loss had been given before the suit. Proof of loss afterwards would not avail...