Taylor v. Roger Williams Insurance , 51 N.H. 50 ( 1871 )

Bellows, C. J.

There was evidence, we think, from which it was competent for the jury to find a waiver of a defect in the preliminary proofs.

The doctrine must be considered well established that, if the insured furnish the preliminary proofs within the time limited, and no objection is made to their sufficiency, but the objection to payment is put by the underwriter upon other grounds, all defects in such proofs will be regarded as waived. Patrick v. Insurance Co., 43 N. H. 623, and cases cited.

The same doctrine was recognized and applied in White v. Insurance Co., Hillsborough county, December term, 1868, where the defect was the omission to obtain the certificate of the nearest magistrate, and the court held that the defect was waived by putting the objection to pay upon other grounds without pointing out the defect in the proofs ; although in the policy there was a stipulation that nothing less than a distinct argreement endorsed on the policy should be construed as a waiver.

In a similar case the same rule was applied in Massachusetts. Blake v. Exchange Mut. Ins. Co., 12 Gray 265.

The authorities in support of the general rule are very numerous. Angel on Ins., secs. 244-248; Vos v. Robinson, 9 Johns. 192; Ætna F. I. Co. v. Tyler, 16 Wend. 385, 401, 402; Heath v. Franklin Ins. Co., 1 Cush. 257; Clark v. N. E. F. I. Co., 6 Cush. 342.

This doctrine goes upon the ground that good faith and fair dealing require that if the underwriter intends to insist upon some formal defect in the preliminary proofs, he should call the attention of the insured to it, and not by his silence, or by setting up some other objection, throw him off his guard until it was too late to remedy the defect.

There is indeed a peculiar reason for such a rule in this class of cases. Many of the requirements for the preliminary proofs are somewhat formal in their character, and they require great care and no little experience to make them perfect; and, from the nature of the case, the insured must necessarily rely much upon the agents of the insurer.

There is an especial fitness, therefore, in applying the ordinary rule which requires objections to matters of form, which may be obviated, to be made at the earliest moment; otherwise insurance companies would very often defeat claims altogether meritorious, upon grounds purely technical.

In the case before us, the evidence tended to show that the preliminary proofs were delivered to the defendant’s agent in due time, with a certificate -of a reputable citizen, A. C. Philbrook, — not a magistrate, but in other respects qualified ; that the agent was present when the proofs were made, and knew that Philbrook was not a magistrate, but assented to taking his certificate, and said it was all right; that no objection was made to the preliminary proofs until long after the time for making them had expired, — but, on the contrary, the agent gave the plaintiff to understand that the loss would be paid, when, by the terms of the policy, it became due.

The objection finally made was, that Philbrook was not a magis-' trate, though the defendant refused to recognize the plaintiff’s claim at all.

The instructions of the court to the jury were sufficiently favorable to the defendant, and contained the substance of the defendant’s request. As a whole, the instructions left it to the jury to determine on all the evidence whether there was or was not a waiver of this defect in the preliminary proofs ; and this we think was right.

The opinion of witnesses as to the value of the entire stock of goods was offered, doubtless, on the ground that they were experts. It could - be on no other. Whether they were experts or,not, for this purpose, was a question of fact to be determined by the judge who tried the cause; and bis decision is not subject to revision here, that question not having been reserved.

The judge may very properly have found that they were not experts, qualified to give an opinion as to the value of the entire stock of goods, without knowing the kinds and quantities of which it was composed. And his decision is not to be revised by us. Dole v. Johnson, 50 N. H. 452.

The offer to show by Mr. Clough the quantity of goods in the store at the time of the fire as compared with the quantity when a certain invoice was made, was rightly rejected, — unless it is to be understood as excluding a general statement that there was a less quantity at one time than the other; but this could hardly be, as the witness was allowed to describe the goods, at different times.

We should rather understand the purpose of the question to be, to obtain the opinion of the witness as to the amount in value of the goods at the different times; and with this understanding of it, the inquiry was rightly rejected.

Proof that the magistrate nearest the fire would not have certified to the amount of the loss claimed by the plaintiff would not be material, except on the question of fraud in the plaintiff, — and not then, unless it was brought to his knowledge ; and as it was not proposed to show such knowledge, the evidence was rightly rejected.

Judgment on the verdict.