Savage v. Phenix Ins. Co. of Brooklyn
| Decision Date | 15 September 1892 |
| Parties | SAVAGE v. PHENIX INS. CO. OF BROOKLYN. |
| Court | Montana Supreme Court |
Appeal from district court, Custer county; GEORGE R. MILBURN, Judge.
Action by Mary E. Savage against the Phenix Insurance Company of Brooklyn. Judgment for plaintiff. Defendant appeals. Affirmed.
J. H Kinsley and T. J. Porter, for appellant.
Middleton & Light, for respondent.
The other facts fully appear in the following statement by HARWOOD, J.:
This is an action to recover $800 insurance, alleged to be owing and due respondent by virtue of an insurance policy issued by appellant to respondent, whereby the former insured the latter against loss or damage of certain household furniture situate in a certain dwelling house in Miles City, Custer county, Mont., by fire, and the subsequent damage in part and total destruction in part, of said property by fire while said insurance contract was in force. It appears that in getting the issues settled the complaint was twice amended, and, as amended, filed. The facts alleged in the second amended complaint as the cause of action may be briefly summarized as follows: That defendant is a corporation, organized and existing under the laws of the state of New York, for the purpose of doing the business of a fire insurance company; that during all the time stated in the complaint defendant was engaged in such business, under its said corporate name, at said city, by and through its duly-authorized agent, Charles W. Seyde; that during all such time plaintiff was the owner of certain household furniture described in the complaint, situate in a certain dwelling house in said city, also described in the complaint; that on August 4, 1888, at said city, in consideration of $13.20 as premium paid by plaintiff to defendant, through its said agent, defendant then and there made and delivered to plaintiff its certain policy of insurance, in writing, of said date, whereby defendant insured plaintiff against loss or damage to said property by fire to the amount of $800; that on November 20, 1888, while said policy was in force, plaintiff was required by defendant's said agent to pay defendant, on account of its having raised the rate of insurance on said property, an additional sum, as premium on said policy, of $6.80, which sum plaintiff paid defendant, through its said agent, who acknowledged receipt thereof for defendant by indorsement on said policy of insurance; that on June 30, 1889, while said policy was in force, and while said property was owned by plaintiff, and situate as aforesaid, a large portion thereof, of the value of $775, was entirely destroyed by fire, and another portion thereof, of the value of $285, was greatly damaged, and thereby plaintiff sustained damage and loss to the amount of $1,060; that said fire originated in neighboring buildings, without the fault of plaintiff; that verbal notice of said loss was given to defendant, through its said agent, the next day following the fire, and written notice thereof was given defendant through its said agent on the 30th day of July, 1889, and on the same day plaintiff furnished to defendant, through its said agent, proofs of said loss, as required by the terms of said policy, setting out in detail the items of said property entirely destroyed, and also the items damaged by said fire, with value of each item destroyed, and the amount of damage to items not totally destroyed; that said proofs of loss so furnished to defendant were duly verified, as required by the terms of said policy, and an affidavit of a notary public was attached thereto, setting forth that he was not concerned in the loss sustained by plaintiff by reason of said fire, nor related to plaintiff; that he had examined and knew the circumstances attending the loss, and that he verily believed the plaintiff had, without fraud, negligence, or fault on her part, sustained loss on the property described in said policy of insurance numbered 94,415, of the Phenix Insurance Company of Brooklyn, N. Y., and that the loss sustained by plaintiff by reason of said fire, and the destruction and damage of said property, was the sum of $1,060; that thereafter, on the 19th of August, 1890, defendant, through its duly-authorized agents, Brown, Craig & Co., of San Francisco, Cal., returned said proofs of loss, together with the affidavit of the notary public, and said written notice of loss, to Charles W. Savage, attorney in fact for plaintiff, accompanied by a communication, in which said defendant, through its last-named agents, "disclaimed any liability under said policy, and refused to pay such loss, or any part thereof, claiming that the said policy of insurance had been canceled by defendant prior to the date on which said property was destroyed or damaged by fire;" that plaintiff never received from said company any notice of cancellation, nor any return premium, nor had any means of knowing that said policy of insurance had been canceled by said company, but, on the contrary, plaintiff, through her attorney in fact, Charles W. Savage, was informed by the said agent Seyde, on the day subsequent to the destruction and injury to said property, "that said policy of insurance was all right, and that the matter would be properly attended to as soon as proofs of loss were furnished by plaintiff, and, as plaintiff is informed and believes, said policy of insurance was never canceled;" that ever since August 19, 1889, defendant has disclained any liability under said policy of insurance, and has refused to pay said loss, or any part thereof; that plaintiff duly performed all the conditions of said policy on her part to be performed; wherefore plaintiff demands judgment for $800 and costs.
Defendant answered the complaint, denying the issuance or delivery of said policy, or the receipt of said sum of $13.20 as premium or the receipt of the additional sum of $6.80, or any other sum, as premium, or the acknowledgment of receipt of any sum, through said agent, for the issuance of said alleged policy of insurance; and further denying that defendant ever, for any consideration, or by any contract or policy, agreed "to make good to plaintiff any loss or damage whatever." Admitted that the property mentioned may have been damaged or destroyed, but denied that at the time of said fire, or at any time, any contract or policy of insurance was in force or existing between the plaintiff and defendant, whereby it insured plaintiff against loss happening by reason of said destruction or injury to said property. Denied that loss or damage resulted to plaintiff, by reason of said fire, to the amount of $1,060, or in any sum greater than $100; or that plaintiff at any time performed any conditions of any policy alleged to have been issued to her by defendant; or that any notice of any loss sustained by plaintiff was at any time given defendant; or that written notice of any such loss or damage "was given to defendant on the 30th day of June, 1889; or that any proofs of loss, as required by the terms of said policy, were ever furnished defendant, through its agent, or otherwise; or that any pretended proofs of loss furnished defendant through its agent or otherwise were verified by plaintiff, or by any other person, or by any notary public; or that any proofs were ever presented which contained any statement of any notary public whatsoever." Admits the return of certain papers to plaintiff "through its authorized agents, Brown, Craig & Co., of San Francisco, but denies that the same were proofs of loss, or that the same were of any kind, character, or nature of which defendant was bound to take notice; and denies that the same referred to any contract or policy of insurance issued by defendant at any time or place." Admits "that defendant refused to pay any loss or any part of loss, at any time; and avers that the reason of such refusal was based upon the failure of plaintiff to fulfill any of her engagements, as hereinafter stated, and by reason of such failure no loss or claim was then due or payable; and denies that defendant refused to pay said loss upon any other or different grounds than those heretofore and herein stated in this answer." Further denies that plaintiff failed to receive notice of cancellation of said policy, or was without means of knowing that the same was canceled. Admits that plaintiff never received any return premium. Denies that defendant, throuugh any agent, subsequent to the fire, informed Charles W. Savage, agent to plaintiff, that any insurance policy issued by defendant to plaintiff was in force, or that any loss or claim would receive consideration. Admits "that on the 19th of August, 1889, and ever since, defendant has disclaimed any liability to the plaintiff, and avers the ground therefor to be as hereinafter stated, and that the same was not done at any time, nor in a manner which in any degree misled the plaintiff." And for further affirmative matter of defense alleges "that on or about the 4th day of August, 1888, and by a supplemental agreement made on or about September 20, 1888, defendant agreed with plaintiff to issue her a policy of insurance for $800, covering and insuring the personal property mentioned and described in plaintiff's complaint, on the express agreement that plaintiff should pay defendant the sum of $22, lawful money of the United States; and that said insurance should be subject to certain conditions, limitations, and requirements, constituting part of the consideration for the issuance of said policy, stipulated and agreed between the parties to be performed as conditions precedent to plaintiff's right to recover for any loss or damage which might happen to said property while so insured, which conditions, limitations, and...
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