Greiss v. State Investment & Insurance
Before: Temple
Synopsis
Fire Insurance—Proofs of Loss—False Statements—Fraud—Pleading— Instruction.—In an action upon a fire insurance policy, where the answer takes issue upon the sufficiency of the proofs of loss, and points out several alleged defects in it, and alleges it to he false and untrue in respect to quality, quantity, and value of the property insured, and in respect to the amount of the loss, but does not charge that it was wilfully false, nor state any facts constituting fraud, nor claim that a forfeiture has been incurred, an instruction that if the jury find that the proof of loss was false and fraudulent, their verdict should be for the defendant, is properly refused.
Id.—Defense, How Pleaded—Fraud —Forfeiture.—A defense should be so pleaded that, being admitted as pleaded, judgment must go for the defendant, and this rule is especially rigid in pleading fraud or a forfeiture.
Id.—Trial of Unpleaded Issue—Estoppel—Absence of Prejudice—Inapplicability of Rule—The rule that where proof has been admitted on the trial, without objection that the answer was insufficient to raise an issue upon the subject-matter of the proof, rests partly upon the estoppel of the plaintiff to object to a defect in the pleading until it was too late to remedy it, thereby inducing his opponent to rely upon the pleading as sufficient, and partly on the ground that the issue has been fairly tried, and neither party has been prejudiced by the want of a good pleading; but this rule does not apply where the evidence given was relevant to issues actually joined upon the sufficiency of the proofs of loss under afire insurance policy, and where the answer of the insurance company raised no issue as to fraud of the plaintiff or forfeiture of the policy, and the defendant was not misled by the conduct of the plaintiff.
Id.—Stipulation for Arbitration — Uncertainty—Condition Precedent—A stipulation in a fire insurance policy for arbitration of the amount of loss, not providing for the number of arbitrators, nor the mode of their selection, is too indefinite to be enforced, and a submission to arbitration thereunder is not a condition precedent to a right of action upon the policy.
Temple, C. This action is upon a fire insurance policy, and the appeal is taken by the insurance company from the judgment and from an order refusing a new trial.
Only two points are made here: 1. That the court erred in refusing to instruct the jury that in case they find that the proof of loss furnished by plaintiff to the company was false or fraudulent, their verdict should be for the defendant; and 2. In refusing to instruct the jury that plaintiff could not recover if he refused to submit the matter of loss to arbitration; but, on the other hand, instructed the jury that arbitration was not a condition precedent to plaintiff’s right to recover.
Respondent contends that the answer raises no issue as to false statements or fraud, and that a forfeiture is not claimed. The instruction asked therefore was not pertinent to any matter involved in the trial, and was rejected for that reason. I think this contention must be sustained. The policy was attached to and made a part of the complaint. It provided that immediate [243]notice of any loss should be given, with a full statement of particulars and amount of loss, etc., and that “any false swearing, fraud or attempt at fraud on the part of the assured shall cause a forfeiture of all claims under this policy.”
The complaint avers due proof of loss and a compliance with the conditions of the policy in other respects. The answer denies this allegation, sets out the proof of loss made, and points out several alleged defects in it, but does not charge that it is either false or fraudulent. It does state, however, that “thereafter on or about the twenty-first day of March, A. D. 1887, defendant presented to and served upon plaintiff its objections and exceptions to said proof of loss, a full, true, and correct copy of which said objections and exceptions is hereto annexed, marked exhibit B, and is hereby expressly referred to and made a part hereof, and that said objections and exceptions to said proof of loss and each of them are, and is, in all respects, true and correct as therein stated, and the same are hereby expressly referred to and made a part hereof,” The matter is not otherwise alluded to in the answer, and as already said, it charges no fraud nor does it claim a forfeiture. No facts are stated which could amount to fraud.
It is provided in section 2635 of the Civil Code: “All defects in a notice of loss, or in preliminary proof thereof which the insured might remedy, and which the insurer omits to specify to him, without unnecessary delay, as grounds of objection, are waived.”
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