STAGGERS v U S F G CO
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No, 12081 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1972 MAURICE R , STAGGERS and HORTENSE JOHNSON, P'J.aintif f s and Respondents, UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant 'and Appellant. Appeal from: D i s t r i c t Court of t h e F i f t h J u d i c i a l D i s t r i c t , Honorable James D, Freebourn, Judge p r e s i d i n g . Counsel of Record: For Appellant : John H. J a r d i n e argued, Whitehall, Montana, Chester L. Jones, V i r g i n i a C i t y , Montana, For Respondent: Morrow, Nash and Sedivy, Bozeman, Montana, Edward P. Sedivy argued, Bozeman, Montana. Submitted : February 18, 1972 Decided : MAY 10 Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court. This i s an appeal by defendant, United S t a t e s F i d e l i t y and Guaranty Company, from a judgment entered i n the d i s t r i c t court of Madison County in favor of p l a i n t i f f s , Maurice R . Staggers and Hortense Johnson. Since the entry of the judgment Maurice R. Staggers has died; his e s t a t e has been probated in the s t a t e of Idaho and c e r t i f i e d copy of the decree of d i s t r i b u t i o n has been f i l e d i n this Court. The decree d i s t r i b u t e s a l l i n t e r e s t of the decedent in this cause of action t o the surviving spouse, Hortense Johnson. P l a i n t i f f s brought t h i s action against the defendant t o recover under c e r t a i n f i r e insurance p o l i c i e s as a r e s u l t of damages which p l a i n t i f f s sustained from a f i r e which occurred on October 11, 1963. verdict f o r p l a i n t i f f s in the sum of $15,620. The jury returned a Defendant's motion f o r a new t r i a l was subsequently denied and t h i s appeal followed. The sequence of events leading u p t o this action can be summarized in t h i s manner: P l a i n t i f f s , Maurice R. Staggers and Hortense Johnson were e l d e r l y and lived i n the Madison Valley area f o r many years. In 1958 Mrs. Johnson bought a Nashua t r a i l e r house and had i t moved t o what was known a s the Stagger's Ranch, located some t h i r t y - f i v e miles south of Ennis, Montana. ing the t r i a l , these lands were referred t o as the "Greenough Ranch". Dur- The t i t l e t o the ranch was i n dispute, although the t r a n s c r i p t reveals Staggers had occupied the land p r i o r t o World War I . T h i s property consisted of t h r e e cabins, in which Staggers had accumulated many possessions. On April 30, 1963, Staggers purchased a f i r e insurance policy from Cloe Paugh, now deceased, but then an agent of defendant. agency a t Ennis. She maintained her This pol icy covered household f u r n i t u r e and personal property contained in the three cabins. The face amount of the policy was o r i g i n a l l y $3,500, b u t a t Stagger's request an additional $1,000 was purchased on July 1 , 1963. On August 9 , 1963, another policy was issued t o Staggers, providing coverage of $4,500 on the Nashua t r a i l e r house and $2,000 on i t s contents. The premiums were paid on the policies and they were in f u l l force and e f f e c t on October 11 , 1963. Mrs. Johnson had been employed a t various motels as a clerk and manager f o r many years, and was employed a t the Kruse Motel in Idaho F a l l s , Idaho, during the year before and a f t e r the f i r e . She would go t o the ranch i n the f a l l , a f t e r the t o u r i s t season, and would s t a y there from time t o time. The day before the f i r e Staggers and one Roy Thompson, who was staying a t a dude ranch known as Neely Ranch, had been a t the cabins and t r a i l e r . The neighbors, Mr. and Mrs. Daryl Stroud, observed Staggers leaving the area about 5:00 p.m. and neither of them saw any f i r e i n the area of the cabins o r t r a i l e r house when Staggers l e f t . A t the t r i a l the p l a i n t i f f s ' case consisted of testimony by them about the insurance policies, the items l o s t , t h e i r e f f o r t s in advising the defendant of t h e i r losses, and the f a c t t h a t t h e i r claims had not been reimbursed by the defendant. Part of the defendant's case consisted of attempt- ing t o prove t h a t the contents of the cabins and t r a i l e r had been removed by the p l a i n t i f f s prior t o the f i r e and were s t i l l in t h e i r possession. However, a t the t r i a l p l a i n t i f f s ' offered e x p l i c i t testimony by c e r t a i n witnesses which c l e a r l y negated any allegations by defendant t h a t p l a i n t i f f s s t i l l held possession t o items claimed t o have been l o s t i n the f i r e . The issues in t h i s matter are: (I) Was the evidence s u f f i c i e n t t o support the verdict of the jury as t o i t s finding t h a t proof of l o s s was tendered within s i x t y days a f t e r loss? (2) Was there s u f f i c i e n t evidence t o support the verdict of t h e jury based upon "substantial compliance" of the provisions of defendant's f i r e insurance policy? (3) Was there s u f f i c i e n t evidence t o support t h e verdict of the jury, based upon waiver? ( 4 ) Was the verdict and judgment contrary t o law? - 3 - (5) Was t h e c o u r t i n e r r o r i n e x c l u d i n g proposed e x h i b i t " G " ? (6) Was t h e c o u r t i n e r r o r i n g i v i n g o r r e f u s i n g c e r t a i n i n - s tructions? In r e f e r e n c e t o t h e f i r s t i s s u e on appeal, t h e d i s t r i c t c o u r t p r o p e r l y reviewed t h i s i s s u e on d e f e n d a n t ' s m o t i o n f o r new t r i a l , and by o v e r r u l i n g s a i d motion r u l e d t h e j u r y ' s v e r d i c t was supported by s u f f i c i e n t evidence. T h i s Court has on s e v e r a l occasions reviewed t h e r u l e s on s u f f i c i e n c y of evidence. I n Campeau v . Lewis, 144 Mont. 543, 547, 398 P.2d 960 (1965), we stated : "The Court has c o n s i s t e n t l y h e l d t h a t t h e evidence i s n o t i n s u f f i c i e n t i f i t i s s u b s t a n t i a l . Adami v . Murphy, 118 Mont. 172, 164 P.2d 150. I n t h e Adami case, t h e c o u r t , q u o t i n g from Morton v . Mooney, 97 Mont. 1, 33 P.2d 262, h e l d t h a t ' s u b s t a n t i a l evidence' c o u l d be d e f i n e d as such "'as w i l l convince reasonable men and on which such men may n o t reasonably d i f f e r as t o whether i t e s t a b l i s h e s t h e p l a i n t i f f ' s case, and, if a l l reasonable men must conclude t h a t t h e evidence does n o t e s t a b l i s h such case, t h e n i t i s n o t s u b s t a n t i a l evidence."' 118 Mont. 172, a t page 179, 164 P.2d a t page 153. The evidence may be i n h e r e n t l y weak and s t i l l be deemed ' s u b s t a n t i a l , ' and one w i t n e s s may be s u f f i c i e n t t o e s t a b l i s h t h e preponderance o f a case. B a t c h o f f v. Craney, 119 Mont. 157, 161, 172 P.2d 308. Also, subs t a n t i a l evidence may c o n f l i c t w i t h o t h e r evidence presented. Win Del Ranches v. R o l f e and Wood, I n c . , 137 Mont. 44, 49, 350 P.2d 581. W t h i n k these cases e d e a l i n g w i t h s u b s t a n t i a l evidence c l e a r l y o u t l i n e t h e meaning o f ' i n s u f f i c i e n t evidence' i n t h e s t a t u t e . The j u r y i s delegated t h e t a s k o f f i n d i n g t h e f a c t s . T h e i r v e r d i c t i s based upon t h e i r f i n d i n g s . The t r i a l judge, however, has t h e d i s c r e t i o n t o p r e v e n t a m i s c a r r i a g e o f j u s t i c e by g r a n t i n g a new t r i a l i f t h e r e i s an i n s u f f i c i e n c y o f evidence t o support t h e v e r d i c t . " S p e c i f i c a l l y , defendant contends t h a t i t s own method o f c a l c u l a t i o n c l e a r l y shows t h e p r o o f o f l o s s was submitted on e i t h e r December 20 o r 21, 1963, t h e r e b y exceeding t h e s i x t y - d a y requirement f o r p r o o f o f l o s s . This Court has r e p e a t e d l y i n d i c a t e d t h a t i t w i l l presume t h a t t h e j u r y , i n reachi n g i t s v e r d i c t , f o l l o w e d t h e i n s t r u c t i o n s t h a t were g i v e n t o i t by t h e t r i a l judge. Welsh v. Roehm, 125 Mont. 517, 241 P.2d 816 (1952). The defendant acknowledges t h e j u r y was f u l l y i n s t r u c t e d on t h e s i x t y - d a y requirement, and t h a t i n t e r e s t could be assessed accordingly. Our examination o f t h e r e c o r d r e v e a l s t h e r e was no s p e c i f i c f i n d i n g by i n t e r r o g a t o r y i n t h e v e r d i c t as t o any s p e c i f i c d a t e as t o t h e submission o f p r o o f o f l o s s by p l a i n t i f f s . The v e r d i c t was f o r a t o t a l f i g u r e o f $15,620 and was n o t broken down as t o p r i n c i p a l and i n t e r e s t . Secondly, we f i n d no m e r i t whatsoever i n defendant's argument t h a t t h e r e was n o t s u f f i c i e n t evidence t o support t h e v e r d i c t o f t h e j u r y based upon " s u b s t a n t i a l compliance" by p l a i n t i f f s w i t h t h e p r o v i s i o n s o f t h e f i r e insurance p o l i c i e s . S u c c i n c t l y s t a t e d , t h e r u l e o f " s u b s t a n t i a l compliance" i s as f o l lows : "Since a p r o v i s i o n i n a f i r e insurance p o l i c y r e q u i r i n g t h e f i l i n g o f p r o o f s o f l o s s i s t o be l i b e r a l l y construed, t h e r e need be o n l y a s u b s t a n t i a l , reasonabl e compl iance w i t h such a p r o v i s i o n and a s t r i c t l y l i t e r a l compliance i s n o t necessary." Couch on Insurance 2d, ยง 49:498, a t Page 76-77. Montana has a p p l i e d t h e d o c t r i n e o f " s u b s t a n t i a l compliance" f o r a considerable p e r i o d o f time. 175, 108 P. 649. Da Rin v. Casualty Company o f America, 41 Mont. W f e e l t h e d o c t r i n e o f s u b s t a n t i a l compliance i s a p p l i c a b l e e t o t h e r e s o l u t i o n o f t h i s case, and our examination o f a l l t h e testimony i n d i c a t e s i n d i s p u t a b l e evidence o f s u b s t a n t i a l compliance by p l a i n t i f f s i n f u r n i s h i n g defendant w i t h a p r o o f o f l o s s . On t h e morning o f t h e day a f t e r t h e f i r e Staggers heard rumors o f a p o s s i b l e f i r e a t t h e t r a i l e r house and cabins. He immediately drove over t o Staggers t h e f i r e scene and found t h a t e v e r y t h i n g was burned t o t h e ground. had been s t a y i n g a t t h e Neely ranch r e c o v e r i n g from h e a l t h problems. He then immediately c a l l e d t h e agent Cloe Paugh who o r i g i n a l l y s o l d him t h e p o l i c i e s . The n e x t day a M r . D i v e l , who was an insurance a d j u s t e r , met Staggers and t h e y along w i t h Cloe Paugh went up t o t h e f i r e scene and c a r e f u l l y covered and d i s cussed t h e e n t i r e l o s s . D i v e l had some f i f t e e n years o f experience i n a d j u s t - i n g f i r e s and h i s company d i d adjustment work f o r t h e defendant. D i v e l took several photographs o f t h e f i r e scene, a l l o f which were marked and o f f e r e d as defendant's e x h i b i t s a t t h e t r i a l . These photos showed t h e remnants and A t the t r i a l Divel t e s t i f i e d t h a t d e b r i s of t h e t r a i l e r house and cabins. Staggers f u l l y discussed w i t h him t h e ownership o f t h e destroyed s t r u c t u r e s and t h e contents i n them. Dive1 t e s t i f i e d he concluded a t t h a t t i m e t h e l o s s was a t o t a l one and he was unable t o determine t h e o r i g i n o f f i r e . Further, on t h a t day, October 12, 1963, D i v e l d i d n o t request any w r i t t e n statements from Staggers about t h e items o f l o s s . The r e c o r d f u r t h e r r e v e a l s t h a t Cloe Paugh a l s o f e l t t h e f i r e was a t o t a l l o s s . She r e a f f i r m e d t h i s i n her l e t t e r t o t h e defendant on October 17, 1966. About t h e same t i m e D i v e l gave t o Staggers a form t o f i l l o u t e n t i t l e d "statement o f l o s s " . D i v e l t e s t i f i e d these forms were "standard company forms" f o r t h e purpose$ o f h e l p i n g t h e i n s u r e d l i s t t h e i r i n v e n t o r i e s o f losses. D i v e l d i d n o t r e c a l l whether he t o l d Staggers t o send t h e completed "statement o f l o s s " t o h i m s e l f o r t o Cloe Paugh b u t D i v e l d i d acknowledge u l t i m a t e l y r e c e i v i n g i t . The r e c o r d f u r t h e r r e v e a l s Staggers stayed a t t h e Neely ranch a few days a f t e r t h e f i r e and then drove d i r e c t l y down t o Idaho F a l l s t o v i s i t w i t h Mrs. Johnson. A t t h e time o f t h e f i r e Mrs. Johnson was i n t h e s t a t e o f Utah a t t e n d i n g t h e f u n e r a l o f her f a t h e r . Upon her r e t u r n t o Idaho F a l l s from t h e f u n e r a l one week l a t e r , t h e two o f them began t o compi 1e t h e 1 is t s o f personal p r o p e r t y l o s t i n t h e f i r e . The r e c o r d shows these two e l d e r l y people worked d i l i g e n t l y i n t h i s regard, r e l y i n g much on t h e i r memory as t h e y had no p r i o r l i s t s t o work from. The two o f them d i d complete t h e "statement o f l o s s " and Staggers t e s t i f i e d he took i t t o Cloe Paugh sometime b e f o r e Thanksgiving o f t h a t year. I t contained t h e l i s t s o f t h e p r o p e r t y l o s t i n t h e f i r e and t h e c o s t s and values o f such p r o p e r t y . A t t h i s p o i n t the record discloses t h a t e v e r y t h i n g seemed i n o r d e r as f a r as t h e p l a i n t i f f s were concerned u n t i l t h e y r e c e i v e d a l e t t e r i n January, 1964 from D i v e l r e q u e s t i n g a n a r r a t i v e statement from them r e g a r d i n g t h e l o s s and expecting them t o come t o Ennis t o do so. Staggers promptly responded t o D i v e l by l e t t e r dated January 13, 1964, and s t a t e d as f o l l o w s : "Sorry t o say I d o n ' t intend t o be i n Ennis t i l l l a s t of May or June * * *. I t would be much more s a t i s factory w i t h me i f you could arrange a settlement f o r m e i n the near f u t u r e without m driving some 350 miles e over icy roads, t h a t will require some expenses t o me." The record shows Staggers did not receive a reply from Divel t o the above l e t t e r and Divel admitted f u r t h e r a t the t r i a l t h a t a f t e r he received the l e t t e r t h e e n t i r e matter was referred from Divel's o f f i c e a t Ennis t o the Helena o f f i c e . Divel f u r t h e r t e s t i f i e d t h a t when he wrote Staggers on January 10, 1964 he knew Staggers was down in Idaho and i t would be d i f f i c u l t f o r Staggers t o come t o see h i m . Approximately one month l a t e r a Mr. Kennedy, who was an agent of defendant, v i s i t e d with Staggers in Idaho Falls about the f i r e but even a t t h a t time he did not ask f o r a narrative statement o r anything e l s e . Staggers t e s t i f i e d Kennedy t o l d h i m the case was being transferred t o Idaho F a l l s so t h a t " I wouldn't have t o go t o Bozeman". In view of the foregoing i t i s d i f f i c u l t f o r t h i s Court t o comprehend defendant's contention t h a t p l a i n t i f f s ' compliance in the matter was "half-hearted, i n e f f e c t u a l , or careless compliance". On the contrary, our f u l l review of t h i s matter leads us t o the conclusion t h a t p l a i n t i f f s did a l l t h a t reasonable persons would be expected t o do under the circumstances they were confronted with. They f u l l y cooperated w i t h Divel and Cloe Paugh in discussing a l l aspects of t h e f i r e . The evidence shows the p l a i n t i f f s d i l i g e n t l y f i l l e d out the "statement of l o s s " forms. N objection whatsoever was ever made by deo fendant regarding the v a l i d i t y of the "statement of loss" form until October 12, 1965, approximately two years a f t e r the f i r e , and even then no s p e c i f i c points of dispute were alleged by defendant. A t t h a t date defendant company wrote a l e t t e r t o p l a i n t i f f s ' lawyer and stated t h a t "no proper proof of l o s s was ever presented". This l e t t e r was written i n reply t o a l e t t e r from p l a i n t i f f s ' attorney t o defendant transmitting a "Supplemental and Amended Report and Proof of Loss" dated August 31, 1965. a t the direction This document was prepared of p l a i n t i f f s ' attorney a f t e r p l a i n t i f f s came t o him f o r counsel i n view of the f a c t they had not obtained payment on t h e i r claim of loss f o r a period of two years since the f i r e . On the basis of the foregoing f a c t s the jury found t h a t the plain- t i f f s did s u b s t a n t i a l l y and reasonably comply w i t h the provisions of t h e i r respective insurance policies. The record herein lends sound credence t o the diligence and good f a i t h of these two elderly individual p l a i n t i f f s in complying w i t h the proof of l o s s provisions contained within t h e i r policies. W feel the language contained i n the early decision of Ohio Farmers' Ins. e Co. v. Cochran, 104 Ohio S t . 427, 135 N.E. 537, 539 (1922) adds thoughtful import t o the crux of defendant's conduct and a c t i v i t y in t h i s matter. There the Ohio Supreme Court was asked t o decide the question of whether an insured substantial l y compl ied w i t h a p a r t i c u l a r pol icy provision requiring a sixty-day notice of a f i r e claim and the Court s t a t e d : "The law of an insurance contract i s not basically d i f f e r e n t from t h e law of any other kind of contract. Where there i s substantial performance upon one s i d e , there should be substantial performance upon the other side; and there i s substantial performance upon one s i d e when such performance does not r e s u l t in any wrongful substantial injury t o the other side. " I t i s time t o g e t away from some of the old-time doctrines--insuring the owner of property i n 1 l i n e , and then uninsuring h i m i n the next 99, involving h i s contractual r i g h t in a maze of conditions precedent, cond i t i o n s subsequent, conditions directory, and conditions mandatory, under a contract, requiring formal and technical exactness as t o the manner and form of a l l these policy provisions i n insurance r i s k s , which a r e not required i n any other kind of contract. "Under the record in t h i s case, we find no prejudicial e r r o r materially affecting the substantial r i g h t s of p l a i n t i f f in e r r o r , and we f u r t h e r find under the record t h a t substantial j u s t i c e has been done." In reference t o the t h i r d issue on appeal, namely, was there suff i c i e n t evidence t o support t h e verdict of the jury based upon the legal doctrine of waiver. Our examination of a l l the f a c t s herein confirms there was s u f f i c i e n t evidence of waiver. The p l a i n t i f f s did everything reasonably required of them i n processing t h e i r claim f o r l o s s . They d i l i g e n t l y com- piled the required information and promptly submitted i t t o Cloe Paugh thinking nothing more was required. that The f a c t s bear out/ the defendant, by i t s conduct, caused the p l a i n t i f f s t o believe t h a t nothing further of them was in f a c t required. N one on behalf of the insurance company, including o agents Cloe Paugh or Divel, ever requested any further information from the p l a i n t i f f s until lcng a f t e r the sixty-day period had expired. Indeed i t was not until January 10, 1964 t h a t Divel ever wrote to the p l a i n t i f f s and even a t that specific instance the defendant made no mention whatsoever about the timeliness of the furnishing of any information. I t was more than two years a f t e r the f i r e before the defendant ever expressed any objection about there not being proper proof of loss. The Court's language contained in Snell v . North British & Mercantile Ins. Co., 61 Mont. 547, 553, 203 P. 521, bears d i r e c t applicability t o the question of waiver as pertains t o the f a c t s now before us. In Snell t h i s Court, in discussing the issue of waiver i n f i r e insurance cases, stated the fol 1 owing: " * * * I t i s conceded by defendant that i f , in connection w i t h the estimate or ascertainment of 1 oss, defendant's agent so conducted himself that he misled the p l a i n t i f f and caused him to understand that nothing further would be required of him, such cor~ductwould constitute a waiver. This i s undoubtedly a correct statement of the rule. (26 C. J . 403, and cases c i t e d . ) "Upon the second ground the great weight of authority i s t o the effect t h a t , i f the assured attempts t o comply with the requirement of the policy as to notice and proof of l o s s , the receipt and retention of proof of loss by the insurer without objection constitutes a waiver of i t s right to object thereto as not satisfying the requirements of the pol icy. (26 C.J. 399, and cases c i t e d . ) " On the basis of the foregoing as applied to the instant f a c t s , we can only conclude defendant's receipt and retention of the "statement of loss", without objection, clearly and unequivocally constituted waiver of any subsequent claim by defendant of p l a i n t i f f s ' f a i l i n g to f i l e a proof of loss. W further find no merit i n defendant's argument that section 40e 3733, R.C.M. 1947, prohibits waiver. Section 40-3733 does provide t h a t the a c t of "Furnishing forms f o r reporting a loss or claim, for giving information relative thereto, or for making proof of l o s s , or receiving or acknowledging receipt of any such forms or proofs completed or uncompleted" shall not constitute waiver. However, w deem i t equally clear our legislature d i d e not intend t h a t an insurance company could furnish forms to the insured t o f i l l out and then mislead the insured into believing t h a t t h i s was a l l the information required. Neither do w t h i n k our legislature would allow the e insurance company to receive these forms and then retain them f o r a period of sixty days without objection and then l a t e r claim t h a t the insured had forfeited a l l his policy rights. As a corollary issue herein, defendant raises the applicability of section 40-3732, R.C.M. 1947, which concerns the furnishing of proof of loss forms, and making i t a duty of the insured to request such forms. The evi- dence clearly shows Staggers requested and received from Dive1 and Paugh the proper forms, and the agents gave him forms marked "statement of loss", which he properly f i l l e d out. The defendant now infers that these "state- ment of loss" forms are something different from "proof of loss" forms. However, defendant offered no evidence as to what a "proof of loss" form was and we find nothing i n p l a i n t i f f s ' conduct t o hold otherwise than that they in no way failed to perform any duty imposed by section 40-3732. Defendant next raises the contention t h a t the d i s t r i c t court erred in excluding defendant's proposed exhibit G . Defendant's proposed exhibit G was a l e t t e r from attorney Jones, on behalf of Daryl Stroud, requesting plaint i f f Staggers to remove his belongings from the cabin. The defendant contends that t h i s l e t t e r would have some legitimate bearing on the motive f o r the fire. However, the record clearly shows that defendant offered no proof t h a t p l a i n t i f f Staggers deliberately s e t the f i r e to the cabins. Both Mr. and Mrs. Stroud t e s t i f i e d that when they saw Staggers leave the area the afternoon of the f i r e , they did not see any f i r e in the area. Thus, the defendant failed t o show any relevancy, competency or materiality t o defendant's proposed exhibit G. Finally, defendant contends the d i s t r i c t court erred i n giving or refusing c e r t a i n instructions t o the jury. Namely, defendant suggests t h a t the c o u r t ' s instruction No. 9 and No. 10, r e l a t i n g t o proof of l o s s , engender manifest inconsistencies. These two instructions c l e a r l y purport t o s e t f o r t h the correct principles of law concerning proof of loss and substantial compliance. Defendant next objects t o the c o u r t ' s instruction No. 16 on valued policy, which instruction was based upon section 40-4302, R.C.M. 1947, and reads as follows: " I t i s the law of the S t a t e of Montana t h a t whenever any policy of insurance shall be written t o insure any i m provements upon real property in t h i s s t a t e against l o s s by f i r e , and the property insured shall be wholly destroyed, without criminal f a u l t on the p a r t of t h e insured, the amount of insurance written in such policy shall be taken conclusive1y t o be the t r u e value of t h e property insured and the t r u e amount of l o s s and measure of damages. You a r e f u r t h e r instructed t h a t the Nashua t r a i l e r home i n question i s t o be considered as an improvement upon real property, the agreed value of which i s $4,500.00." Section 40-4302, R.C.M. 1947, reads as follows: "Val ued pol icy 1aw. Whenever any pol icy of insurance shall be written t o insure any improvements upon real property i n t h i s s t a t e against lbss by f i r e , tornado or l i g h t n i n g , and the property insured shall be who1 l y destroyed, without criminal f a u l t on the p a r t of the insured o r h i s assigns, the amount of the insurance written i n such policy shall be taken conclusively t o be the t r u e value of the property insured, and the t r u e amount of l o s s and measure of damages, and the payment of money as a premium f o r insurance shall be prima f a c i e evidence t h a t t h e party paying such insurance premium i s the owner of the property insured; provided, t h a t any insurance company may s e t up fraud in obtaining the policy as a defense t o a s u i t thereon." Instruction No. 16 applied solely t o the Nashua t r a i l e r house which was covered by the insurance policy in the amount of $4,500. Dive1 t e s t i f i e d t h a t the t r a i l e r house was a t o t a l l o s s . Agent After reviewing a1 1 the testimony herein pertaining t o the appropriateness of instruction No. 16, we conclude the d i s t r i c t court properly determined, as a matter of law, t h a t the t r a i l e r was an "improvement upon real property", within the meaning of section 40-4302, supra. The testimony shows the t r a i l e r house had been o r i g i n a l l y moved t o i t s location a t the Staggers ranch in 1958. It was f u l l y s e t u p to live i n , connected to a cesspool, and hooked u p to a l i g h t plant. I t was also connected to propane and o i l tanks. W feel our e decision in Meccage v . Spartan Ins. Co., 156 Mont. 135, 477 P.2d 115, clearly supports our conclusion that defendant's issue a t bar i s without merit. In Meccage w held that a t r a i l e r house was an "improvement on real property" e mder the definition of section 40-4302. Lastly, defendant argues the d i s t r i c t court erred in f a i l i n g to subini t t o the jury defendant's proposed instruction No. 5, concerning the time when proof of loss was to be given as s e t forth in the policies. W find e that t h i s proposed instruction was repetitious of c o u r t ' s instruction No. 7, concerning proof of l o s s , substantial compliance and waiver, and No. 10 defining substantial compliance. I t i s clear therefore, that a l l matters in t h e offered instruction were f u l l y covered in the instructions properly sub- mitted, and accordingly the d i s t r i c t court was not in error in refusing to submit defendant's proposed instruction No. 5. Our complete review of a l l the testimony contained in the e n t i r e transcript of t h i s appeal leads us to the conclusion p l a i n t i f f s were d i l i gent, sincere, and completely proper in f i l i n g t h e i r claims in the above matter. On the basis of the foregoing and finding no reversible error herein, the j u d g ment of the d i s t r i c t court i s aff court to show Hortense Johnson n . Jack Shanstrom, d i s t r i c t judge, ' 1 s i t t i n g in place of Mr. Justice Castles. / ,I - 12 -
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