Doyle v. Phœnix Insurance , 44 Cal. 264 ( 1872 )

By the Court, Wallace, C. J.:

The plaintiff brought this action upon three several policies of insurance by which the defendant had insured her against loss or damage by fire upon certain property of hers. The defendant not appearing, a default and final judgment for the plaintiff was entered below, and after an ineffectual effort made there to set aside the default and to obtain leave to defend the action, the defendant brings this appeal.

The complaint contains three counts, each of which sets forth in haec verba the policy, for a breach of which it professes to proceed, and the first point made is, that each' of said counts is radically defective, and substantially insufficient to support the judgment by default which the plaintiff obtained, in that it does not appear that the sum for which judgment was rendered, or any part thereof, was due.

As the several counts. and policies sued upon are, mutatis mutandis, identical, it will only be necessary to particularly notice the first one.

By the terms of the policy it is provided as follows: “The amount of loss or damage to be estimated according to the actual cash value of 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,” etc. It is objected, that it does not appear from the allegations of the complaint that when the action was commenced this period of sixty days had elapsed. In answer to this point the respondent relies upon the following averments in the complaint:

“ That the plaintiff duly performed all the conditions on her part, in the said policy of insurance, to be performed. That she gave to defendant due notice and proof of the fire, and loss aforesaid, and demanded payment of the said sum of six hundred dollars; that no part of the same has been paid, and that the whole of said sum is now due, for which she demands judgment,” etc.

The allegation that the sum “is now due ” may be laid out of the case, inasmuch as that is a conclusion of law merely. ¡Mor does the averment that the plaintiff" duly performed all the conditions on her part, in the said policy of insurance to be performed, and that she had given due notice and proof of the loss, aid the complaint in this respect.

Under the terms of the policy, the doing of these things would not give her an immediate right of action against the defendant for the payment of the sum demanded, for the defendant was not bound to pay until the lapse of sixty days thereafter. In a complaint filed on the very next day after the notice and proof had been given, it might have been alleged, with truth, that all these things had been done; and yet it will not be pretended that she would at that time have had a cause of action against the defendant, or that the latter was then in default because payment had not been made. The delay of the sixty days after notice, to which, under the terms of the policy, the defendant is entitled, is a substantial right secured by the stipulation of the contract, not merely to enable it to prepare to pay, but also to investigate the circumstances under which the loss occurred, with a view of determining whether or not the loss had been of such a character as involved an obligation upon its part to pay at all.

Judgment reversed, and cause remanded.

Mr. Justice Belcher did not express an opinion.