Zabarsky v. Employers' Fire Ins. Co.
| Decision Date | 06 February 1924 |
| Citation | 123 A. 520 |
| Parties | ZABARSKY v. EMPLOYERS' FIRE INS. CO. |
| Court | Vermont Supreme Court |
Exceptions from Caledonia County Court; Frank L. Fish, Judge.
Assumpsit by Harry D. Zabarsky against the Employers' Fire Insurance Company.
Judgment for plaintiff. On exceptions by defendant. Affirmed.
Argued before WATSON, C. J., and POWERS, TAYLOR, SLACK, and BUTLER, JJ,
Searles & Graves, of St. Johnsbury, for plaintiff.
Shields & Conant, of St. Johnsbury, for defendant.
This is an action of assumpsit on a policy of fire insurance dated June 19, 1922, to recover for a loss that occurred the October following.
The policy contains the following provisions, which are material to a consideration of the first two exceptions briefed:
(a) "In the event of loss or damage the Assured shall give forthwith, notice thereof in writing to this Company; and within sixty (60) days after such loss, * * * shall render a statement to this Company signed and sworn to by the Assured, Btating the place, time and cause of the loss or damage, the interest of the Assured and all others in the property, the sound value thereof and the amount of loss or damage thereon, all encumbrances thereon," etc.; and (b) "No suit or action on this policy or for the recovery of any claim hereunder shall be sustainable in any court of law or equity unless the Assured shall have fully complied with all of the foregoing requirements," etc., among which requirements are those above enumerated.
The plaintiff introduced in evidence the policy, and testimony tending to show ownership of the property damaged, the fire, and the extent of the loss occasioned thereby. With the evidence standing in this posture, and during the cross-examination of the plaintiff, the defendant introduced in evidence what purported to be two proofs of loss received by it from the plaintiff, one dated December 21, 1922, and the other dated January 20, 1923, and thereupon offered in evidence two letters written by it to the plaintiff's attorneys, one under date of December 29, 1922, wherein it declined to accept the proof of loss first above mentioned for the following reasons, namely: It was not seasonably filed; there was other insurance on the property; the insured had not correctly stated therein his interest in the property; and he had overstated the amount of loss sustained—and the other under date of January 30, 1923, wherein it declined to accept the second proof of loss for substantially the same reasons stated in its former letter. These letters were offered together, for the purpose of "connecting up the whole situation," and to show notice to the plaintiff that the proofs of loss were not acceptable because not filed within the time provided by the policy, and that the defendant by retaining them did not waive a compliance by the plaintiff with the terms of the policy. They were objected to on the ground that parts of them were inadmissible, and that, by reason of G. L. 5567, the plaintiff was not obliged to file a proof of loss until notified by the defendant, in writing, to do so, and were excluded subject to the defendant's exception. It is only necessary to consider the second ground of objection. The statute referred to provides that—
"A fire insurance policy shall not be void by reason of failure to make and deliver a proof of loss to the insurer, until the insurer notifies the insured in writing to make and deliver proof of loss in accordance with the terms of the policy, and the insured fails to make and deliver such proof of loss within thirty days from the time of receiving such notice," etc.
And G. L. 5569, provides that the provision above quoted shall be a part of every fire insurance policy written on any property located in this state. Manifestly, the statute made it unnecessary for the plaintiff to file a proof of loss until called upon to do so by the defendant, in the manner therein pointed out. However, if he chose to do so, and relied thereon, on the trial, the defendant would unquestionably have the right to show its attitude respecting such proof. But such is not the case; the plaintiff did not rely upon the proofs of loss, and gave no evidence concerning them; they were introduced by the defendant, for no apparent purpose other than as a basis for the admission of the letters under consideration. In the circumstances, the letters were properly excluded. The defendant now challenges the constitutionality of G. L. 5567, but, since this question was not raised below, it is not considered.
The plaintiff was permitted to testify on re-direct examination that he never received a demand or notice from the defendant to furnish a proof of loss, to which the defendant saved an exception. The only ground urged against the admissibility of this evidence is that, the policy provided that the plaintiff should furnish a proof of loss; out, in view of the statute, and what has already been said, this evidence was admissible.
The policy contains under the title "warranties" the following:
The defendant pleaded a breach of this warranty, and fraud and deceit on the part of the plaintiff in procuring the policy of insurance, and, in support of these issues, was permitted, during the cross-examination of the plaintiff, to put in evidence a mortgage given by him on the truck in question to the Foundry Motor Car & Manufacturing Co., Inc., April 25, 1921, not for the purpose of showing more incumbrances on the truck than were specified in the policy, out for the purpose of showing that the plaintiff "didn't properly set up the mortgage." The plaintiff claimed that the latter mortgage was owned by the Champlain Motor Company at the time the policy was issued, and was the mortgage therein described, and that it was the only incumbrance on the truck, and, after "its introduction by the defendant, called as a witness one Bradley, who, after testifying that he was at one time connected with the Champlain Motor Company as salesman, testified as follows:
These answers were received subject to the sole objection that this was not "the proper way of proving the corporate existence," which we take to mean of the Champlain Motor Company. But, manifestly, this evidence did not relate to the corporate existence of that company. Nothing had appeared at that time to indicate whether the Champlain Motor Company was a corporation, a copartnership, or the business name of an individual. As against the only objection urged, the evidence was admissible.
The same witness testified that the Champlain Motor Company owned the mortgage in question on June 19, 1922, the date when the policy was issued. To this the defendant excepted on the ground that "there is nothing in writing about that," and the further ground that the evidence was purely hearsay. The first ground of exception is untenable. It was not necessary that there be a written assignment or transfer of the mortgage to the Champlain Motor Company to constitute it the owner thereof. Newell Bros. v. Hanson, 123 Atl. 208, decided at the January term, 1924. As to the other ground of exception, the witness had already testified that he had personal knowledge on that subject, and, after the objection was...
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