Smith v. Franklin Fire Ins. Co. of Philadelphia
| Decision Date | 05 December 1921 |
| Docket Number | 4525. |
| Citation | 202 P. 751,61 Mont. 441 |
| Parties | SMITH v. FRANKLIN FIRE INS. CO. OF PHILADELPHIA. |
| Court | Montana Supreme Court |
Appeal from District Court, Cascade County; H. H. Ewing, Judge.
Action by Daisey E. Smith against the Franklin Fire Insurance Company of Philadelphia, Pa. Judgment for the plaintiff on defendant's default, and from the order overruling motion to vacate the judgment and to permit defendant to file an answer, defendant appeals. Reversed and remanded, with directions.
Freeman Thelen & Frary, of Great Falls, for appellant.
Speer & Lohrke, of Great Falls, for respondent.
This action was brought to recover upon a policy of fire insurance. Summons was issued and served, but defendant failed to appear within the time allowed by law, and its default was entered and a judgment rendered in favor of the plaintiff for the amount claimed in the complaint. Thereafter the defendant moved the court to set aside the default vacate the judgment, and permit the defendant to file an answer, which was tendered. The grounds of the motion were that service of the summons was irregular and defective, and that the complaint does not state facts sufficient to constitute a cause of action. The motion was denied and defendant appealed from the judgment and from the order denying its motion.
It is contended that the service of the summons was ineffectual for any purpose, in that the proper person was not served, but however this may be, any defect or irregularity in the service was cured by filing the motion, which constituted a general appearance on the part of the defendant. Hinderager v. MacGinniss, 202 P. 200, decided November 21, 1921, and not yet [officially] reported. Further discussion of this subject is unnecessary.
The policy in question contains many provisions, among which are the following:
"If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company * * * and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating [then follows an enumeration of the facts which are to be included in the statement], * * * the loss shall not become payable until sixty (60) days after notice, ascertainment, estimate and satisfactory proof of the loss herein required, have been received by this company."
The policy provides also, that the ascertainment or estimate of the amount of the loss shall be made by the insured and the insurance company, or, if they differ, by a board of appraisers, for the creation of which provision is made.
A copy of the policy is attached to and made a part of the complaint, and it is insisted that the complaint fails to state a cause of action, in that it fails to allege that 60 days elapsed after notice and proof of loss were served upon the company, and after the amount of the loss was determined as provided in the policy, and before the action was commenced. In the complaint it is alleged that the fire occurred on February 3, 1919, and that on February 24 plaintiff caused notice of the loss to be served upon the defendant. This action was commenced on April 30, and to determine that fact reference may be made to the record which discloses when the complaint was filed (Connecticut Mut. Life Ins. Co. v. McWhirter, 73 F. 444, 19 C. C. A. 519), so that it does appear affirmatively that more than 60 days elapsed after the service of notice of loss and before the complaint was filed.
There is not any allegation in the complaint that proof of loss--the verified statement mentioned above--was ever furnished at any time, or at all, or that the furnishing of the same was waived. Giving the notice and furnishing the proof are separate and distinct acts. The proof may, under certain circumstances, serve the purpose of notice, but a mere notice does not ordinarily supply the place of formal proof (26 C.J. 376), and however the two acts may be done, the performance of each is a condition precedent to the insured's right to recover in the absence of waiver. DeRin v. Casualty Company of America, 41 Mont. 175, 108 P. 649, 27 L. R. A. (N. S.) 1164, 137 Am. St. Rep. 709.
In order to avoid the force of the objection now under consideration, plaintiff relies upon the following allegation which appears in the complaint:
"That the plaintiff has, at all times, done and performed all of the stipulations, conditions and agreements stated in said policy to be performed on her part at the time and in the manner therein specified."
Section 6572 of the Revised Codes provides:
"In pleading the performance of conditions precedent in a contract, it is not necessary to...
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