Pasherstnik v. Continental Ins. Co.

• Decision Date: 03 April 1923
• Docket Number: 5055.
• Citation: 214 P. 603,67 Mont. 19
• Parties: PASHERSTNIK v. CONTINENTAL INS. CO.
• Court: Montana Supreme Court

214 P. 603

67 Mont. 19

PASHERSTNIK v. CONTINENTAL INS. CO.

No. 5055.

Supreme Court of Montana

April 3, 1923

Commissioners' Opinion.

Appeal from District Court, Yellowstone County; Robert C. Stong Judge.

Action by Sam Pasherstnik against the Continental Insurance Company. From judgment for plaintiff, and from order overruling motion for new trial, defendant appeals. Judgment and order affirmed.

M. J Lamb and Snell & Arnott, all of Billings, for appellant.

Pierson & Smith, of Billings, for respondent.

FELT C.

This action was brought by the plaintiff to recover from the defendant the amount due on a policy of hail insurance for losses alleged to have been sustained by reason of two separate hailstorms occurring on August 2 and August 11 1920, respectively. Trial was had to a jury. The verdict was for the plaintiff, and the court rendered judgment thereon. The defendant moved the court for a new trial, which motion was overruled. The appeal is from the judgment and from the order overruling the motion for a new trial.

The appeal presents three questions for the consideration of this court: (1) Were the allegations of the complaint sufficient to plead and the evidence sufficient to prove that the plaintiff had an insurable interest in the grain? (2) Was the evidence sufficient to prove that plaintiff had given notice of loss? (3) Did the defendant waive the making of proof of loss by the plaintiff as required by the terms of the policy? We will set forth in this opinion only such portions of the pleadings and facts proven as are necessary for a determination of these questions.

The complaint, among other things, alleges:

"That during the season of 1920, plaintiff had growing 140 acres of wheat in area in section 11, township 4 north, range 25 east M. P. M., and 67 acres of winter wheat in section 14, township 4 north, range 25 east M. P. M."

Before any testimony was offered in the case, the defendant objected to the introduction of any evidence, on the ground that the complaint fails to state facts sufficient to constitute a cause of action. The particular insufficiency claimed is that the portion quoted does not plead an insurable interest. The objection was overruled by the court. This ruling is specified as error. Section 8070, Rev. Codes 1921, provides:

"Any interest in property, or any relation thereto, or liability in respect thereof, of such a nature that a contemplated peril might directly damnify the insured, is an insurable interest."

The grower of a crop has an interest of such a nature that he would be damnified by a contemplated peril. Furthermore, we think the allegation is sufficient to plead that the plaintiff was the owner of the crop insured. The word "had" is the past participle of "have," and "have" may denote ownership as well as mere possession. The pleading is by no means a model for concise statement, but is sufficient to withstand the attack made against it. The court properly overruled the objection.

The appellant also urges that the proof of an insurable interest is also insufficient to sustain the verdict and judgment. Nothing more need be said than that the proof is slightly more specific than the allegation of the complaint. The plaintiff testified that he sowed the crop and performed other labor in connection with its production. He frequently refers to it as "my crop." This is sufficient to raise a presumption that he was the owner of the crop, in the absence of proof to the contrary.

The defendant by its answer sets forth a copy of the policy of insurance upon which the plaintiff is seeking to recover. Among its provisions are contained the following:

"Within forty-eight hours after the happening of any loss or damage by hail to the crops herein described, claimed by the assured to equal five per cent. (5 %) or more of the total insurance against hail thereon, as hereinbefore provided, the assured shall send by registered mail to the Continental Insurance Company at Great Falls, Mont., a written notice stating the number of this policy, the day and hour of the hailstorm, the amounts of other insurance against hail, if any, and the probable percentage of damage to the crops on each parcel of land herein described; and this company shall not be liable for any loss or damage, unless such notice thereof is so furnished to this company within said time and no other form or service of notice shall be deemed proper notice within the provisions and meaning of this policy. * * * Within sixty days after the happening of any such loss or damage equaling five per cent. (5 %) or over, unless such time be extended in writing by this company, the assured shall furnish to this company a statement in proof of the loss, signed and sworn to, setting forth the number and date of this policy, the location, description, and acreage of the land upon which the crops are situated, a description of the crops damaged, and the percentage of damage to the crops contained on each parcel of land herein described, and a statement specifically detailing how and in what manner the amount claimed was determined; what, if any, other insurance; also whether crop has suffered previous loss; if so, how much and by whom insured. No denial of liability or other act on the part of this company, or on the part of any agent, adjuster, or other representatives, shall waive or dispense with the furnishing of such sworn statement in proof of loss; and this company shall not be liable under this policy for any loss or damage of which the proof herein required is not furnished to this company within the time herein provided."

The answer alleges that the plaintiff failed to give notice of loss, and likewise failed to make or give any proof of loss, as required by the portion of the policy herein quoted. The plaintiff in his reply alleged that he had given the notice of loss and that the defendant had waived the requirement as to sworn proof of loss. The appellant urges that the evidence is insufficient to sustain the verdict, in that it fails to prove that the plaintiff gave any notice of loss, and likewise fails to prove that the plaintiff made sworn proof of loss or that the defendant waived either of such requirements.

The plaintiff testified that, on the morning of August 2, 1920, before daylight, his crop was damaged by a hailstorm to the extent of about 20 per cent. On the same day he went to the local agent of the defendant, Mutual State Bank of Broadview, and reported the loss. However, he only claimed 15 per cent. loss. As a result of this interview, the local agent prepared the following notice (omitting immaterial parts):

"Notice of Hail Loss. This notice must be signed by the assured and sent by registered mail within forty-eight hours after loss occurs to Continental Insurance Company, Hail Department, at Great Falls, Mont. Do not telegraph. Broadview, Mt., 8/2 1920. Gentlemen: Crops insured under policy No. 3168 were damaged by hail, which occurred on the 30th day of July, 1920, at about 7 o'clock p. m., as follows: 15%--140 acres of Wht on Sec. 11, T. 4, R. 25. * * * There is other insurance on said crops as follows: No. _____. Insurance company, _____. Amount, _____. My P. O. address is Broadview. Nearest R. R. station same. Land is located 14 1/2 miles E. of said station."

This notice was signed by the plaintiff and mailed to the defendant by registered letter on August 2d. Since the notice recites that the loss occurred on July 30th at 7 p. m., the appellant contends that it was no notice of a loss occurring on August 2d. There might be some force to the contention were it not for the fact that the notice was prepared by the agent of the defendant, after the...