Wakely v. Sun Insurance Office of London
Wakely v. Sun Insurance Office of London
Opinion of the Court
Opinion by
This is an appeal from the judgment entered by the court below for want of a sufficient affidavit of defense in an action on a policy of fire insurance on a building and its contents.
The affidavit avers substantially that (1) the plaintiff concealed and misrepresented a material fact concerning the value of the building; (2) the plaintiff has not furnished satisfactory proofs of loss; (3) the plaintiff has refused and neglected to produce, for examination, all books of accounts, bills, invoices and other vouchers, at Knoxville; and (4) the property described in the policy was but partially destroyed January 11, 1912, and was further destroyed by a later fire, notice of which was not given to the defendant nor claim made for insurance under the contract.
1. The alleged misrepresentation and concealment is as to the value of the building, the affidavit averring that it was not of the value of $2,000 at which it was insured, and was not worth more than $1,500, and that plaintiff thereby obtained insurance in excess of that
2. The affidavit avers that the plaintiff has not furnished defendant satisfactory proofs of loss of the items of merchandise contained in the policy. The fire occurred on January 11, 1912, and the plaintiff’s statement avers “that on February 1st, the assured, W. O.
3. The affiant further avers that since the fire, the plaintiff has refused to produce for examination “all books of account, bills, invoices and other vouchers, or certified copies thereof if the originals be lost,” whereby the policy became void. It is not averred that the books of account, etc., were necessary to enable the company to make a defense to an action on the policy. We must
4. The fourth and last defense, as averred in the affidavit, is that the property described in the policy “was not wholly destroyed on January 11, 1912, as alleged in the plaintiff’s statement of claim, but was only partially destroyed at that date and was further destroyed by a subsequent fire in the same premises, notice of which said subsequent fire was never given to the defendant by the said plaintiff, nor any claim made for insurance under said contract of said defendant,” and that “defendant avers and expects to be able to prove that the amount of personal property burned (in the fire of January lith) was not $3,792.11, as averred in the plaintiff’s statement, but of a much less value, the exact amount of which affiant is unable to state.” This averment is clearly defective. The statement of claim does not allege that the property was wholly destroyed by the fire of January 11th, which occasioned the loss sued for, but that“afire occurred totally destroying the buildings insured under said policy and a large part of the merchandise covered by said policy were destroyed.” The items of merchandise totally destroyed and those which were damaged but not totally destroyed by the
The affidavit of defense is made by A. D. Lundy who swears that “he is the state agent for the State of Penn
A careful examination of the affidavit of defense does not disclose a defense to the plaintiff’s claim and, therefore, the learned court below was right in making the rule absolute and entering judgment against the defendant, .
Judgment affirmed.
Reference
- Full Case Name
- Wakely v. Sun Insurance Office of London, England
- Cited By
- 23 cases
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- Published
- Syllabus
- Insurance — Fire insurance — Proof of loss — Defective proofs— Waiver. 1. Where proofs of loss are- delivered to an insurance company within the time stipulated in the policy, in good faith as a compliance with the provisions of the policy, it is the duty of the company to give immediate notice to the assured of its objections to the proofs, if any, pointing out the defects, and if the company neglects to do so, its silence will be held as a waiver of such defects in the proofs. Affidavit of defense — Sufficiency of affidavit — Suit on insurance policy — Concealment of value — Proof of loss — Refusal to produce boolcs — Notice of loss — Execution of affidavit. 2. If an affidavit of defense is made by an agent of a defendant corporation, it should ¿ver why it is not made by an officer of the corporation, and the agent should show that he has special knowledge of the facts if the affidavit is made from his personal knowledge and not from information and belief. If the party making the affidavit does not have personal knowledge of the facts, the established form is for the affiant to aver that he is informed, believes and expects to be able to prove them. 3. In an action on a fire insurance policy covering a building and its contents, an affidavit of defense is insufficient which avers (1) that the plaintiff concealed and misrepresented a material fact concerning the value of the building, but alleges no specific facts disclosing concealment and misrepresentation; (2) that the plaintiff had not furnished satisfactory proofs of loss, but fails to assert that the proofs did not meet the requirements of the policy, or to show wherein they were unsatisfactory, or to deny the averment in the statement that notice was given in complianee with the terms of the policy, and where the facts admitted ghow a prompt furnishing of the proofs and failure to object to them until the filing of the affidavit of defense; (3) that the plaintiff had refused and neglected to produce for examination all books of accounts, bills, invoices and other vouchers, but did not aver that the books desired by the defendant and refused by the plaintiff related to the insurance out of which this controversy arose; (4) that the property described in the policy was but partially destroyed on January 11, 1912, and was further destroyed by a later fire, notice of which was not given to the defendant, nor claim made for insurance under the contract, where the statement makes no claim for loss occasioned by fire subsequent to January 11th, and there is no denial of the averment of the statement of claim that the defendant by its agent agreed to the estimated loss on the damaged goods; (5) and that the affidavit of defense was executed by an agent of the defendant, who “is the state agent for the State of Pennsylvania” for the defendant corporation, but did not aver that said agent had personal knowledge of the alleged facts set out in the affidavit, nor that as an officer of the company his duties required him to have knowledge of such matters, but merely averred that it was his duty to make the affidavit of defense “inasmuch as no officers of the company better able to do so are residents of the State of Pennsylvania.”