Western Home Insurance v. Thorp

[240] Opinion by Strang, C.: This was an action on a policy of insurance. The petition reads as follows: “ The said Lexcina C. Thorp, plaintiff, complains of the said Western Home Insurance Company, defendant, for that the said defendant, in consideration of a certain premium by and between the said plaintiff and defendant agreed upon, and by the said plaintiff then paid, to wit, the sum of $18, on the 14th day of January, 1886, at Paola, Miami county, Kansas, did, by a certain policy of insurance of that date, duly executed, insure the said plaintiff against loss and damage by fire to the amount of $300, which policy of insurance with schedule thereto attached is hereto attached, marked ‘Exhibit A/ and made a part of this petition. And the said plaintiff further says, that at the time of the date of said policy of insurance the said plaintiff was the owner of the said two-story, frame, shingle-roofed building, occupied as a retail grocery store, situated on lot 7, block 32, Paola, Miami county, Kansas, known as the ‘Thorp ladder factory,’ and so continued from thence up and until the time of the said loss hereinafter mentioned. And the said plaintiff further says, that she has duly kept, observed and performed all the requirements and conditions contained in said policy, and in the schedule thereto attached, by her the said plaintiff to be kept, observed and performed in that behalf. And the plaintiff further avers, that afterward, on the 1st day of April, 1886, the said two-story, frame, shingle-roof building became and was consumed and wholly destroyed by fire, of all which the said defendant afterward, to wit, on the 1st day of April, 1886, had due and legal notice. And the said plaintiff further says, that she has been damaged by the burning of the two-story, frame, shingle-roofed building to the amount of the said sum of $300 and over. Yet the said defendant, although the said plaintiff has duly done and performed all and singular the requirements and conditions by said policy and schedule thereto attached required to be done and performed by the said plaintiff, to entitle her to the payment of said amount of loss so sustained by said plaintiff, and to render the said defendant liable to pay the same, yet not regarding its said duty in the premises, did not or would not pay the said sum of $300, uor any part thereof, to the said plaintiff, but hitherto and still refuses so to do, to the damage of said plaintiff $300. “Wherefore the said plaintiff prays judgment against the [241] said defendant for said sum of $300, her damages so as aforesaid sustained, and her costs of suit.” To said petition the defendant below filed the following answer: “And now comes the said defendant, and, for answer to the petition of the plaintiff, states the following grounds of defense. “1. The defendant denies each and all of the allegations of the petition of the plaintiff'. “ 2. And the defendant alleges that after the said policy had been executed and delivered to the plaintiff, and before the time of the destruction of the said building by fire, the retail grocery store mentioned in said policy was removed from said building, (and at the time of the said fire no part of said building was occupied as a retail grocery store,) without permission therefor in writing on said policy, and contrary to and.in violation of one of the conditions of said policy, and the plaintiff is, therefore, not entitled to recover upon said policy. “Wherefore defendant prays judgment for costs, with such additional relief as defendant ought to have.” The reply was as follows: “And now comes the said plaintiff, and, for reply to defendant’s amended answer filed herein, denies each and every allegation, averment and statement of new matter contained and set forth in said answer. Wherefore plaintiff asks judgment as prayed for in the petition.” The insurance policy sued on was attached to the petition, and contains, among other things, the following provisions: “1. In case of loss or damage by fire, the assured shall, within 60 days, render an account of the loss, signed and sworn to, stating how the fire originated, giving copies of the written portions of all policies thereon, also the actual cash value and ownership of the property, and the occupation of the premises. “2. The amount of loss or damage to be paid in 60 days after the proof of the same, as required herein, shall have been made by the assured, and received by the company.” The case was tried by a jury, which fdund for the plaintiff [242] in the sum of $357.75, and also made the following special finding: “Did the -plaintiff, before the commencement of this suit, render to the defendant an account of the loss, signed and sworn to? Ans. The jury finds no proof in the testimony submitted that the plaintiff made any signed and sworn statement to the defendant.” This is the only finding in the record that in any way relates to the subject of proof of loss. The defendant below requested the court to submit the following instruction to the j^y: “ That, unless the plaintiff made proofs of loss in substantial compliance with the terms of the policy before the commencement of the suit, she cannot recover.” This1 request was refused, and the defendant took its exception thereto. The- instructions given by the court are as follows: “This is an action brought by the plaintiff, Lexcina C. Thorp, against the defendant, the Western Home Insurance Company, of Sioux City, Iowa, to recover the sum of $300, and interest. The execution of the policy is not a question in this action. It is admitted that the defendant executed this policy of $300 on the property described in the policy, to wit, upon a two-story, frame, shingle-roof building, occupied as a retail grocery store, situated in lot 47, block 32, Paola, Kansas, known as ‘Thorp’s ladder factory.’ The burden rests on the plaintiff to establish her right to recover judgment by a preponderance of the evidence, and to show the amount of loss she has sustained. If the building was insured for the sum of $300, and was a total loss, and the building was of a greater value than the $300, of course the plaintiff, if she was entitled to recover under the terms of the policy, would be entitled to recover the full amount of the policy. And if she is entitled to recover in this action, she will also be entitled to recover 7 per cent, interest from the time that the attempt at settlement was made between her and the adjuster of the company, and the refusal on the part of the company to pay the loss.” These were all the instructions given, except the usual instructions as to weight of evidence. The defendant moved [243] for judgment on the findings, which motion was overruled} and exception saved. The defendant also moved for a new trial, and gave as its reasons therefor, among others, the' following : “1. Error of law occurring at the trial and excepted to by the defendant. “ 2. The court erred in refusing the first special instruction asked by the defendant” — said instruction being the one heretofore copied. i. proof of loss or waiver to be shown. [244] 3. Evidence; waiver. [243] The record does not contain the evidence in the case. Under the provisions of the policy sued on, the plaintiff must establish one of two things in order to recover: (1) She must show that she made proof of loss in substantial compliance with the terms of the policy before i . A the commencement of the suit; or (2) she must show a waiver of such proof of loss by the company. (Insurance Co. v. Hathaway, 43 Kas. 399; Insurance Co. v. Deford, 38 Md. 382; Insurance Co. v. Carpenter, 4 Wis. 20; Railroad Co. v. Insurance Co., 105 Mass. 570; Insurance Co. v. Schell, 29 Pa. St. 31.) The plaintiff does not in terms plead the making of proof of loss; but she makes the general allegation in her petition that she had done and performed all the conditions required of her by the terms of the policy and the schedule thereto attached. This general allegation is equivalent to an allegation, among others in the petition, of proof of loss made in compliance with terms of the policy. (Tripp v. Insurance Co., 55 Vt. 100; Cassacia v. Insurance Co., 28 Cal. 629; Insurance Co. v. Sweetser, 116 Ind. 370.) This was denied in the answer, and the jury find that no signed and sworn statement of loss was made. • The language of the jury’s answer to the question relating to proof of loss is narrow, but we think that it is equivalent to saying that the plaintiff made written proof of loss. A written statement of loss must be signed, to be identified, and before such statement becomes proof of loss, it must be sworn to, The proof of loss, to even substantially comply with the terms of the policy, must be in writing and verified by an oath. The [244] plaintiff, having failed to make proof of loss, could not recover in the case unless she was in a position to prove a waiver of such proof by the company. Was she in such a position? We think not. There is nothing in the pleadings upon the subject of waiver. The plaintiff could not prove a waiver without first having plead it. (Dwelling-House Insurance Co. v. Johnson et al., 47 Kas. 1, and cases there cited. Also see the following cases: Vogel v. Insurance Co., 9 Gray, 23; Insurance Co. v. Capehart, 108 Ind. 270; Insurance Co. v. Dyches, 56 Tex. 565; McCormack v. Insurance Co., 78 Cal. 468; Weed v. Insurance Co., 7 Lans. 452.) Evidence cannot be given of matters not within the issues as formed by the pleadings. In Graham v. Trimmer, 6 Kas. 230, the court says: “Proof must be confined to the issues made by the pleadings, and it is the duty of the court to insist upon a compliance with such rule.” In Brookover v. Easterly, 12 Kas. 152, the court again says: “The first- rule governing in the production of evidence is, that the evidence offered must correspond with the allegations, and be confined to the point in issue.” It is suggested that as the evidence is not here we may not determine that proof of a waiver was not in fact made. We cannot presume that the rules of evidence were violated in the trial of the case below, but must presume that the evidence was confined to the issues, and that, as no waiver was alleged, none was proved, since it was the duty of the court to confine the evidence to the issues. Eeference is made in the brief of defendant in error to the record of this case as brought here before, and now on file in this court. That case, however, is no part of this record, and we are confined to the record in this case. If counsel had desired to incorporate the former case-made, or any part thereof, into this record, he should have suggested its incorporation as an amendment to the case-made as presented by the counsel for the plaintiff in error, or in some other way made it a part of [245] the record in this case. We cannot go outside of the record in this case to examine the evidence or any other portion of any other record in this court, unless authorized so to do by the record in this case. There is no reference to the former case-made in this record. Calling attention to it in the brief confers no authority on this court to examine it. The question growing out of the change of occupancy of the building, after effecting the insurance and before the fire, was settled when the case was here before (40 Kas. 257). 2. instruction ■ refusal, error. The court should have given to the jury the instruction asked. Its refusal was error. The instruction asked was material, and correctly stated the law of the case Up0n tpe question to which it related. And the court failed to give any instruction at all upon the question involved in the instruction refused. It is recommended that the judgment of the court below be reversed, and the case sent back for further proceedings. By the Court: It is so ordered. Horton, C. J., and Valentine, J., concurring.