Opinion
June Term, 1901.
W.C. Beecher, for the plaintiff.
William D. Murray, for the defendants.
The defendants in this action, as attorneys in fact for various parties doing business as the Isthmus Lloyds of the City of New York, and authorized to issue policies of insurance in the name of the underwriters whose names are set forth in the summons, are alleged in the complaint to have "heretofore, and on or about the 24th day of September, 1897, * * * duly entered into a contract with said Huse Loomis Ice and Transportation Company, by a policy of insurance numbered 21,922, issued by the said Isthmus Lloyds of the City of New York, in which and by which defendants covenanted, promised and agreed in consideration of the sum of $20.00 to them paid by the said Huse Loomis Ice and Transportation Company, to insure the property of the said Huse Loomis Ice and Transportation Company aforesaid, for the term of one year from the 31st day of October, 1897, to the 31st day of October, 1898, against all direct loss or damage by fire to an amount not exceeding $1,000 in the aggregate," such property being located "on the Island in St. Charles County, State of Missouri, opposite Alton, Illinois, known as Red Group, said insurance to be paid within sixty days after notice and proof of loss." It was further alleged that "on or about the 21st day of June, 1898, and while said contract of insurance was remaining in full force and effect, the aforesaid building, appurtenances and attachments mentioned in said policy was fully destroyed by fire," and "that said fire did not occur from any one of the causes excepted in said policy." After various other averments of incidental matters, it is alleged that the claim of the Huse Loomis Company was duly assigned to the plaintiff, and judgment is demanded for the sum of $1,000, with interest. (There are two actions involved here, on different policies, but the same rules of law are involved, and only the facts in one are necessary to be stated.)
The answer of the defendants denies any knowledge or information sufficient to form a belief as to the ownership of the premises insured, the amount of insurance upon such property other than that written by the defendants, the assignment of the claim, etc., but admits that they were engaged in writing Lloyd insurance policies and that the policy in question was written and delivered in the manner above set out, and "begs leave to refer to the policy therein mentioned, upon the trial of this action," for "greater certainty and for the terms and conditions upon which such insurance was effected." The defendants also deny "that the Huse Loomis Ice and Transportation Company duly performed all the conditions on their part, and that more than sixty days have elapsed since the delivery by such company to defendant of notice and proof of loss, and that defendant has failed to pay said sum of $1,000, or any part thereof, although due demand has been made therefor," except that it is conceded that the payment has not been made. Upon the trial both parties asked for the direction of a verdict. The motion of the defendants was denied and an exception taken, and that of the plaintiff was granted, the defendants taking an exception to the decision in favor of the plaintiff.
It is urged on the part of the defendants that proofs of loss not having been rendered to the insurer within sixty days after the fire, the plaintiff is not entitled to recover, Peabody v. Satterlee ( 166 N.Y. 174) being cited as the controlling authority upon this point. The undisputed testimony is that proofs of loss were mailed in Chicago on the afternoon of August 20, 1898, which was the sixtieth day after the fire, and were received by the defendants on August 24, 1898, sixty-three days after the fire; and if it appears from the pleadings or the evidence that the policy under which the plaintiff claims required the notice, as in the Peabody case, there would be no doubt that there could be no recovery. The difficulty with the defendants' position is that, while they begged leave to refer to the policy upon the trial for greater certainty as to the terms and conditions upon which the insurance was effected, they have failed to avail themselves of the privilege, and the record does not disclose that any notice of loss, within sixty days of the fire, was necessary as a condition precedent to recovery. Section 522 of the Code of Civil Procedure provides that "each material allegation of the complaint, not controverted by the answer * * * must, for the purposes of the action, be taken as true," and the 3d paragraph of the complaint, as given above, sets out a contract of insurance and the said insurance was "to be paid within sixty days after notice and proof of loss," without suggesting any limitations as to the time within which such notice should be given. The answer admits the allegations of the 3d paragraph, with the suggestion that it is desired to refer to the policy upon the trial; and having omitted to put the policy in evidence, defendants must be deemed to have waived the privilege, and to admit the contract as set forth in the pleadings. ( Clendinning v. Lindner, 9 Misc. Rep. 682, 683.) We must accept the pleadings which are not controverted as true, and there is nothing in the record to show that it was necessary for the insured to put in proofs of loss within sixty days from the fire; the contract as it appears conceded in the pleadings is to pay the insurance within sixty days after notice and proof of loss.
The same reasoning applies to the second point of the defendants, that plaintiff's assignor did not give immediate notice of the fire; there is nothing to show that the insured was called upon to give such immediate notice.
It is urged, however, that no other policy than the standard policy could have been issued in New York, and that, as the law is presumed to have been complied with, it must be assumed that the defendants wrote a standard policy, which, in effect, the court is asked to presume contains the provisions requiring immediate notice of the fire, and that proofs of loss shall be submitted to the company within sixty days as a condition precedent to recovery. In support of this proposition we are told that in Peabody v. Satterlee ( supra) the court declared that the use of the standard policy in this State was made compulsory, but we fail to find that the court decided that fire underwriters were confined to the standard policy in writing insurance upon property in another State, while the statute distinctly limits it own operation to "any fire insurance policy or the renewal of any such policy on property in this State." (Laws of 1892, chap. 690, § 121; General Laws, chap. 38.) If the court were to take judicial notice of the fact that the standard policy contains the requirements assumed by the defendants, it would still have no evidence, and there would be no possible presumption that this policy, written upon property in the State of Missouri, as stated in the complaint and admitted or not denied by the answer, was a standard policy, and without this the defendants can have no defense to the present action.
The evidence fully sustains the averments of the complaint in respect to all of the questions which may be deemed to have been determined by the trial court in directing a verdict, after having been requested so to do by both parties, and the exceptions should be overruled and a judgment for plaintiff directed.
All concurred.
Exceptions unanimously overruled, and judgment directed for the plaintiff, with costs.