Bergeron v. Employers' Fire Insurance

BARNARD, P. J.

The defendant insurance company issued to one Nettie E. Ratchford a policy of fire insurance covering certain property in Taft, California. The plaintiffs herein held a mortgage on the property, and a mortgage clause in their favor was attached to the policy. The insured property was destroyed by fire on February 7, 1928, while the policy was in force. Subsequently, Nettie E. Ratchford conveyed the property to the plaintiffs and assigned to them all of her rights under the insurance policy. This action was brought to recover for the loss sustained. The policy contained the following provisions:

“The insured . . . shall submit to examination under oath, as often as required. ...”

“No suit or action on this policy for the recovery of any claim shall be sustained until after full compliance by the insured with all of the foregoing requirements. ...”

In its answer the defendant alleged as follows:

“That said Nettie E. Ratchford failed and/or refused to submit to said examination under oath or to any examination under oath and said Nettie E. Ratchford did not appear at the time and place specified for said examination under oath nor give any excuse for her non-appearance; that said Nettie E. Ratchford never since nor before nor at any time has offered to submit to any examination under oath.”

The action was tried before the court without a jury, and judgment was given for the plaintiff, based upon findings of fact. This appeal comes before us upon the judgment-roll alone.

The court found that the insurance policy in question contained the provisions above quoted, and also that- the said Nettie E. Ratchford was duly notified in writing that she was required to submit to an examination under oath

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at the city hall in Taft, California, on July 14, 1928. The court also found as follows.- “that said Nettie E. Batch-ford on and prior to the 14th day of July, 1928, was ill and unable to get out of bed; and was unable to attend to her business affairs because of her illness; that said Nettie E. Batchford was justified by her illness in not submitting to the examination as was required by said defendant company on the 14th day of July, 1928, and that shortly after said date, the said Nettie E. Batchford was obliged, because of her illness, to, and did leave the City of Taft, California, and go to the City of Ventura, California and remain there because of her health.” No other findings in reference to the point in issue were made. The only point raised by appellant is that these findings do not support the judgment, in that they do not show that Nettie E. Batchford submitted herself to examination under oath when required to do so, and that they do not show a reasonable excuse for her failure to comply with that provision of the policy.