Cassacia v. Phœnix Insurance
Before: Sawyer
Synopsis
Appeal from the District Court, Twelfth Judicial District, City and County of San Francisco.
The complaint averred that the property insured was destroyed by fire July 30th, 1863, and that immediately thereafter .the plaintiff furnished the defendant with the proof of the loss as required by the policy. Judgment was rendered for plaintiff December 15th, 1864, for two thousand and thirty-three dollars and twenty-eight cents and costs, the judgment to bear interest at ten per cent per annum.
The other facts are stated in the opinion of the Court.
By the Court,
Sawyer, J. This is an action on a policy of insurance for the value of the goods insured destroyed by fire. The policy contained a clause that, “ if the assured shall keep gunpowder * * * this policy shall be void.” At the trial it appeared, that at the [630]time of the fire plaintiff had in her store “ eleven cans of gunpowder for sale in her business.” Thereupon the defendant, at the close of plaintiff’s case, moved for a nonsuit, upon the ground that the policy had become void under the provision cited. The motion was denied, and this ruling constitutes the principal ground of the appeal.
The complaint, which is verified, alleges that the “ plaintiff on her part ‘in all respects’ faithfully complied with all the terms and conditions of the said policy on her part to be kept, observed and performed.” This allegation is not denied, and if material, is admitted for the purposes of the action. And the answer does not set up the keeping of gunpowder as a defense. The contract was valid at the time it was made. If it is void, it has become so by acts of the plaintiff contrary to the conditions of the contract that have happened since it was made; and these matters should have been put in issue in some mode, and we think, set up by the defendant. The fact relied on to sustain a nonsuit was not relevant to any issue taken on the allegations of the complaint, and no issue was tendered by new matter set up in the answer. It was, consequently, irrelevant to any issue in the case. We think there was no error in denying the nonsuit.
The only other point is, as to whether the Court erred in allowing interest under the prayer of the complaint—for the excess over the specific amount demanded is evidently interest at the legal rate from the date of filing the complaint till the verdict. The judgment was not by default, and under section one hundred and forty-seven of the Practice Act, the Court was authorized to “ grant any relief consistent with the case made by the complaint and embraced within the issues.” The contract was to “ make good unto the assured * * all such
immediate loss or damage not exceeding two thousand dollars, as shall happen by fire to the property ” insured, “ the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proof of the same made by the assured and received at the office in accordance with the terms
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