Firemen's Insurance v. Crandall , 33 Ala. 9 ( 1858 )

RICE, C. J.

—The charge given by the court was excepted to, only “in so far as it related to the question of waiver; ” and so far as it relates to that question, it is fully sustained by the authorities. In fire, as well as in marine insurance, formal defects in preliminary proof may be supplied, whenever objection to pay a loss is put upon that ground. If the underwriters mean to insist upon such a defect, “.they should apprise the assured that they consider the preliminary proofs defective in that particular, or put their refusal to pay upon that ground as well as others, so as to give the assured an opportunity to supply the defect before it could be too late ; and if they neglect to do so, their silence should be held a waiver of such defect in the preliminary proofs, so that the same shall be considered as having been duly made according to the conditions of the policy.”—Angelí on Ins. §§ 244, 248; Tayloe v. Merch. Fire Ins. Co., 9 How. (U. S. Sup. Ct.) Rep. 390; Allegree v. Maryland Ins. Co., 6 Harr. & Johns. Rep. 408.

The charge asked called upon the court to state to the jury, as a conclusion of law, that the answer of the president of the defendant corporation, in connection with the facts named in that charge, did not amount to a waiver of the certificate of the notary or magistrate. That proposition was too strong. The answer of the .president was made after certain preliminary proofs had ,been furnished to the company, and was an absolute and unqualified refusal to pay the plaintiff’s claim for a loss. It did not refer in any way to-the answer wMch had: been given by the secretary of the company to-the plaintiff’s attorney, before any pme*liminary proof had been furnished or offered. There is nothing in the answer of the secretary, given before any preliminary proof was attempted, nor in any other fact stated in the charge asked, which would have authorized the court to state to the jury, as a conclusion of lato, that the answer of the president, given after the preliminary proofs had been furnished to the company, did not amount to a waiver of the certificate of the notary or magistrate. The charge as asked denied to the jury even the right to infer a waiver from the answer of the president.—King v Pope, 28 Ala. Rep. 601.

As there was evidence tending to show a waiver of the certificate of a notary or magistrate, there was no reversible error in permitting the certificate of the notary-public, Douglass, to go to the jury with the other preliminary proof. Its tendency was. to show, that if the company had put its refusal upon the non-production of such certificate, the plaintiff could have supplied the defect; and if there was any error in admitting it, it was clearly error without injury.

The hill of exceptions, so far as it relates to the receipt of Aaron «T. Bates, is confused and obscure. It must be construed most strongly against the party excepting. Thus construed, we understand it as showing, that -the receipt, with other-evidence, was offered “to show a compliance with the preliminary proof before the company; ” that when offered.for. that purpose, the- counsel for the company objected to its introduction for any. other purpose—thereby conceding its admissibility for the only purpose for which it was offered■; and that the court overruled the objection as thus made, and that the receipt was read to the jury “as independent evidence as a receipt only for so much money,” but was thus read for the single purpose of showing a compliance with the preliminary proof before the company—in other words, to show that this receipt,, as -well as other preliminary proof, had been laid before the company. ¥e see no error in permitting the plaintiff to prove that this receipt was among the preliminary proofs furnished to- the company. And if the company had desired the court to inform the’ jury, that the receipt was evidence for this purpose only, and could not be regarded by them as evidence of the payment of the sum of money mentioned in it, a charge to that effect should have been asked. No such charge was asked, and the single question raised as to the receipt is^ whether the plaintiff had the right to show to the jury that he had furnished it, with his other preliminary proofs, to the company, in his effort to comply with the condition of the policy requiring preliminary proofs. We decide that question in the affirmative'.

There is no reversible error, and the judgment is affirmed.

STONE, J.

—I think this case should be reversed, on that part of the affirmative charge which relates to the doctrine of waiver; The charge asserts, in effect, that if the evidence be believed, the act of the president of the company was a waiver of all defects in the preliminary proof. While I would feel inclined to agree with the majority of the court, if the reply of the president were all the evidence on that point; yet I.think, under the facts disclosed in this record, that inquiry should have gone to the jury. The testimony of Allen, if believed, shows that, before the assured had submitted any preliminary proof, his attorney was notified that the company would require a compliance with the conditions of the policy, to the very letter. Crandall subsequently, and before the company refused payment, made an unsuccessful attempt to procure a certificate from a magistrate near the scene of the fire; and, I have no doubt, would have furnished the proper certificate, if he could have procured it.

Under this state of the proof, I do not think it can be assumed, as matter of law, that the declaration of the president was a refusal to pay in any event. It should have been left to the jury to determine whether the refusal was an unqualified denial of liability, and therefore a waiver of further preliminary proof.—Turley v. Nor. Amer. Fire Ins. Co., 25 Wendell, 374; Columbian Ins. Co. v. Lawrence, 2 Peters, 25 ; Tayloe v. Merch. Fire Insurance Co., 9 How. U. S. 360-403; Martin v. Fishing Insurance Co., 20 Pick. 389, 396; St. Louis Ins. Co. v. Kyle, 11 Missouri, 278, 290.