Greiss v. State Investment & Insurance

Citations

• 98 Cal. 241
• 33 P. 195
• 1893 Cal. LEXIS 897

Syllabus

<p>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.</p> <p>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.</p> <p>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.</p> <p>Id.—Stipulation for Arbitration — Uncertainty—Condition Precedent—A stipulation in a fire insurance policy for arbitration of the amount of loss, not providing for th