Zengerle v. the Commonwealth Ins. Co. of N.Y., 6265

• Citation: 321 P.2d 636,1958 NMSC 22,63 N.M. 454
• Decision Date: 04 February 1958
• Docket Number: No. 6265,6265
• Parties: Jacob H. ZENGERLE and Eva Zengerle, his wife, Plaintiffs-Appellants, v. THE COMMONWEALTH INSURANCE COMPANY OF NEW YORK, a corporation, and Arthur H. Abernathy, Defendants-Appellees.
• Court: New Mexico Supreme Court

Page 636

321 P.2d 636

63 N.M. 454

Jacob H. ZENGERLE and Eva Zengerle, his wife, Plaintiffs-Appellants, v. THE COMMONWEALTH INSURANCE COMPANY OF NEW YORK, a

corporation, and Arthur H. Abernathy,

Defendants-Appellees.

No. 6265.

Supreme Court of New Mexico.

Feb. 4, 1958.

Rehearing Denied Feb. 26, 1958.

Merritt W. Oldaker, Roy F. Miller, Jr., Albuquerque, for appellants.

Simms, Modrall, Seymour, Sperling & Roehl, George T. Harris, Jr., Daniel A. Sisk, Albuquerque, for appellees.

McGHEE, Justice.

Appellant, Zengerle was the owner of a retail hardware and general merchandizing store in San Antonio, New Mexico, insured by Hardware Dealers Mutual Fire Insurance Co. On November 30, 1951, appellant, uncertain of the expiration date of his Hardware Mutual policy (which was actually December 14) purchased a new fire policy from Arthur Abernathy, an old friend of his father's, to become effective December 1, 1951. As is customary, Abernathy took the order for the fire insurance without specifying the company which would issue the policy. Later, Abernathy completed the forms, designating the insurer as Commonwealth, the appellee, and mailed the forms to Commonwealth's general agent in Denver. No policy was ever mailed to Zengerle.

On December 1, 1951, a fire totally destroyed the store and its contents. Appellant notified Hardware's Albuquerque agent of the fire on December 3 and mailed proofs of loss on February 12, 1952 and the loss was adjusted. No notice was given to Abernathy or Commonwealth until April 1, 1952, and proof of loss was not tendered until the middle of April although the policy with Commonwealth was to be the standard New Mexico fire insurance policy which requires, as a condition precedent to the insurer's liability immediate notice of the fire and proof of loss within 60 days.

The lower court refused recovery although there was a binding contract of insurance because appellant failed to give notice and file proofs of loss within the required time and as there was no act on the part of the appellee insurance company excusing the failure to give notice and file proof of loss there was no waiver or estoppel.

Whether or not there was substantial evidence to support the trial court's finding of no waiver by the insurance company must decide the case here.

The requirement of notice and filing proofs of loss is a condition precedent to the insurer's liability, Sec. 58-8-10 N.M.S.A.1953 Comp., Vol. 5, Appleman, Insurance Law and Practice Sec. 3481, p. 649, and enables the insurer to take such action as might be necessary to protect his interests.

These conditions can be waived, 49 A.L.R.2d 88, Vol. 5, Appleman, Insurance Law and Practice Sec. 3481, p. 649, but the burden is upon the insured to show that compliance has been waived. 123 A.L.R. 950, 972.

In Western Farm Bureau Mut. Ins. Co. v. Lee, 1957, 63 N.M. 59, 312 P.2d 1068, we declared the test of waiver of notice and proof of loss in insurance cases.

'Conditions of an insurance policy requiring the insured to furnish various notices after loss in a particular manner are for the benefit of the insurer and may be waived by words or conduct inconsistent with an intention to demand exact compliance from which the insured is led to believe such compliance is unnecessary * * *' See also Vol. 17, Appleman, Insurance Law and Practice, Sec. 9748, p. 578; 49 A.L.R.2d 88, 123...