The Westchester Fire Insurance Company v. Coverdale

• Decision Date: 20 November 1899
• Docket Number: 528.[*]
• Parties: THE WESTCHESTER FIRE INSURANCE COMPANY v. W. T. COVERDALE
• Court: Kansas Court of Appeals

58 P. 1029

9 Kan.App. 651

THE WESTCHESTER FIRE INSURANCE COMPANY v. W. T. COVERDALE

No. 528.^[*]

Court of Appeals of Kansas

November 20, 1899

Decided November, 1899.

Error from Sumner district court; J. A. BURNETTE, judge.

Judgment of district court reversed.

SYLLABUS

1. PRACTICE, DISTRICT COURT -- Certificate to Case-Made. A finding made and entered in the case-made by the judge while settling and signing such case, showing that notice has been given, is sufficient, prima facie to prove the fact that such notice was given. ( Haynes v. Cowen, 15 Kan. 637, 645, 646.)

2. -- Rules of Evidence -- Proof of Waiver. The evidence in a cause must be confined to the issues as framed by the pleadings. A waiver cannot be proved unless it is within the issues made by the pleadings. (Insurance Co. v Thorp, 48 Kan. 239, 28 P. 991.)

3. FIRE INSURANCE -- Proofs of Loss -- Evidence. Where a policy of insurance provides that in case of loss the insured shall, within thirty days thereafter, render to the insurer a particular account of such loss, by separate items, and proof thereof signed and sworn to, the insured cannot, in an action upon such policy, recover without showing that proof of loss, in substantial compliance with the terms of the policy, has been rendered before the expiration of the time provided or that the company has waived such proof.

4. -- Waiver of Proofs -- Time. A waiver, to be operative, must take place before an action is brought upon the policy, and, it would seem, before the time for supplying such proof has expired. (Smith v. The State Insurance Co., 64 Iowa 716, 21 N.W. 145.)

E. F. Ware, for plaintiff in error.

C. E. Elliott, and H. L. Woods, for defendant in error.

OPINION

SCHOONOVER, J.:

This was an action to recover upon a policy of insurance which contained, among others, the following provision:

"VII. -- Proceedings in case of loss. PROOF. -- The assured under this policy sustaining loss or damage by fire shall forthwith give notice in writing of said loss to the company, and within thirty days thereafter render a particular account, by separate items, and proofs thereof, signed and sworn to by the said assured, setting forth:

"1. A copy of the written portion of this policy and all indorsements thereon.

"2. Other insurance, if any, on same property, or any portion thereof, with copies of written portion of each policy, and indorsements thereon.

"3. The actual cash value of the subject insured at the time immediately preceding the fire.

"4. The ownership of the property insured, and the interest of the assured in same.

"5. For what purpose and by whom the building herein described, or containing the property herein specified, and the several parts thereof, were used at the time of the fire.

"6. The date of the loss, and the amount thereof.

"7. How the fire originated, so far as the assured know or believe."

In his petition, the plaintiff averred that he had "at all times kept and performed all the covenants, promises and conditions in said policy of insurance contained, and upon his part to be kept and performed."

Defendant, in its answer, among other grounds of defense, alleged "that the plaintiff gave no notice of the fire and made no proof of loss as required by the policy." Plaintiff filed a reply to defendant's answer denying "each and every allegation of new matter in said answer of defendant contained," and, upon the issues thus made up, the parties proceeded to trial. The jury found for plaintiff and judgment was rendered by the court in his favor; defendant brings the case to this court and asks that such judgment be reversed.

Defendant in error has filed a motion to dismiss the petition in error herein upon the ground and for the reason that there is nothing to show "whether any amendments were suggested, or that the plaintiff had none to offer; that there is nothing to show where the case was settled and signed and it has no date; it does not show that the plaintiff or his attorneys were present or that they knew when to appear." The certificate of the judge to the case-made is as follows:

"SUMNER COUNTY, STATE OF KANSAS, SS.

"I, J. A. Burnette, judge of the nineteenth judicial district, do hereby certify that the foregoing is a true case-made, and, upon due notice, do settle and sign the same and cause it to be attested by the clerk of the district court of Sumner county, and the seal of said court to be attached to it, and order it to be filed with the papers in the case. J. A. BURNETTE,

"Attest: J. D. SIMPSON, Judge District Court Nineteenth Judicial District of Kansas.

Clerk District Court, Sumner County, Kansas."

It will be observed that the judge certifies that the case is "upon due notice" signed, settled, and allowed. In the case of Gross v. Funk, 20 Kan. 655, the court held that "where the judge of the court, in the absence of the adverse party, and without any objection from him or from any other person, settles and signs the case upon such a notice, and nothing further is done concerning the same, the supreme court will, in the absence of other irregularities, treat the case as valid."

"A finding made and entered in the case-made by the judge while settling and signing such case, showing that such notice has been given, is sufficient evidence, prima facie, to prove the fact that such notice was given." (Haynes v. Cowen, 15 Kan. 637, 645, 646.)

The defendant in error has not shown, by affidavit or otherwise, that notice was not served, and the motion will be overruled.

While several assignments of error are set out in the brief of plaintiff in error, we think that it will be sufficient for the purposes of this opinion if we consider the second and third only, which are as follows: (2) In allowing plaintiff to prove a waiver when no waiver was pleaded in the petition; (3) in overruling demurrer to evidence. "

Mr Coverdale, the plaintiff, testified, in substance, that about ten days after the fire he was called upon by a Mr. Kellar, who was the adjuster of the defendant insurance company. Kellar proceeded to question him about the building burned, what it was worth, its size, etc. The answers to the questions were reduced to writing by Kellar and signed...