Cole v. Manchester Fire Assurance Co. ( 1898 )

OPINION BY

Mr. Justice Dean,

On April 19, 1894, each of defendant companies issued to plaintiffs a policy of insurance against fire in tbe sum of $1,050, tbe insurance to be in force for one year from date; the policies were on the same stock of goods in plaintiff’s store at Hazel-dell in Lawrence county, consisting of dry goods, notions, groceries, etc. On night of March 1, 1895, the property was wholly destroyed by fire. Immediately after the loss, the insured notified the companies of it, and thereupon, Charles P. Kellerman, agent and adjuster for both companies went to Hazeldoll and called upon the insured; after considerable inquiry he offered to settle with plaintiffs for a sum equal to about hall' the two policies, which offer the plaintiffs declined. On March 22, following the fire the plaintiffs made out proofs of loss and transmitted them to the companies. .The receipt of these proofs was acknowledged and the companies at the same time called the attention of the insured to what they alleged were defects, such as, that they were not sworn to, the written parts of the policies were not copied, nor was there a statement of the loss by items, and, further, that they would not be accepted as proper proofs. On April 16 following, Hammer, an adjuster for both companies, wrote to the insured again calling attention to the alleged deficiencies in proof and requesting them to hurry up the amendments. Immediately after, the insured wrote to Kellerman, the first adjuster, that they had duplicate bills in their possession, and were ready to meet him any time he would name. In response, the companies notified the insured that Hammer, their second adjuster, would be at Ellwood on April 19, and requesting them to meet him there with their papers, invoices and books. They accordingly met on that day and the insured produced many papers and invoices tending to show the quantity and value of the goods on hand at date of fire ; they also made statements from recollection to the same effect. Hammer made a memorandum in writing from these papers and statements showing approximately the loss which Thomas Cole, one of the partners, signed, stating “ this is substantially correct and true.” Thomas Cole met Hammer shortly after in Pittsburg and was again offered $1,000 to compromise and save litigation, which offer was again refused. On June 19, the insured again prepared proofs of loss and sent them to the companies and were again notified that they weré not satisfac-' tory. On September 16, the insured again made out proofs of loss and transmitted them to the company and were again informed the proofs were not in compliance with the terms of policies and were unsatisfactory. Thereupon on November 28, 1895, plaintiffs brought suit against both companies. They defended on the ground that proofs of loss were not furnished as required by the policies ; that plaintiffs did not produce, as required, books of account, invoices, bills, vouchers and copies thereof, although often requested so to do; the plaintiffs replied that any technical defects in such proofs had been waived by defendant. At the trial the real question in the case and the one on which it turned was what was the amount of plaintiffs’ loss. The preliminary proofs are conditions precedent; what constitutes them is determined by the contract and, the proofs being in writing, that is a question for the court. Here, the court first held that the proofs made by plaintiffs were a substantial compliance with the requirements and conditions of the policy. - If it had held,- that on the face of them they were ' not, that would have ended plaintiffs’ case, unless plaintiffs offered to follow them with evidence that defendant had waived the service of such preliminary proofs by conduct which misled plaintiffs and estopped defendant from insisting on the condition as a prerequisite; but having been decided by the court to be a sufficient compliance with the requirements of the policy, as the trial then stood, the plaintiffs had the right to proceed to establish their claim to the satisfaction of the jury, not by exhibiting to them the proofs of loss, but by evidence independent of them. But the proofs were admitted as affirmative evidence of the loss, against the objection of defendant to their relevancy. They were not admissible for that purpose ; they did not concern the jury, and were both incompetent and irrelevant. True, it might turn out during the progress of the trial that for some purposes they were relevant; they might have been offered by defendant to contradict the testimony of plaintiffs or to show falsehood, fraud or false swearing; and possibly they might have been offered to contradict evidence on part of defendant if they had denied notice of any particular items of loss. But, for the time being, plaintiffs had only established their right to sue, and the proofs were not relevant for any other purpose. They were however admitted and read to the jury as establishing the value of the property destroyed. Without them the evidence as to the quality, quantity and value of the goods was of a most meager and unsatisfactory character. Taking the duplicate bills of plaintiffs’ purchases from wholesale establishments and the average daily sales, according to their own statements, there could not have been on hand at the date of the fire, even approximately, the quantity of goods claimed to have been destroyed. It is almost incredible that two business men, having daily access to and sight of a small stock of goods in a countiy store, could have been so ignorant of any of the details necessary to establish their loss, even conceding, as they claim, that they kept no cash account, that their day book was destroyed, leaving only their ledger. Their testimony and that of Gomer Griffiths and William Geisler of the same character was substantially the only legal evidence of the extent of the loss. The jury awarded the full amount of the claim. We think it more than doubtful that the jury on this testimony alone could have so found even against an insurance company. But the irrelevant evidence of the proofs of loss was before them; these specified it with some degree of particularity and supplied what was vague in the oral evidence. They were not formally withdrawn from the jury in the general charge, nor were they then instructed to disregard them. They were instructed that the proofs of loss Avere not sufficient, and that unless there Avas a Avaiver by the company they should find for defendant. The implication was, if they found defendant had Avaived the presentation of such proofs, then the papers erroneously admitted were for their consideration. The jury should have been told by the learned judge in plainest terms that the proofs of loss, Avhether sufficient or insufficient, whether Avaived by the company or not, should be entirely excluded from their consideration in making up their verdict. As the case stood at the close of the evidence, the learned judge had changed his ruling permitting Thomas Cole to testify in explanation of the absence of a proper jurat to the proofs, but a careful reading of Avhat he then said to the jury, while leaving no doubt in our minds as to what he meant, might very well have been construed by laymen to mean that they Avere not to regard the testimony-of Cole in his explanation. The instruction was not of that explicit character which would remove the effect of the illegal evidence. On a retrial the preliminary proofs should form no part of plaintiffs’ evidence establishing their loss, and they should be strictly held to independent proof thereof by evidence satisfying the jury as to the extent of it.

What we have said disposes of appellant’s first, second, third and fourth assignments of error; they are sustained. There is nothing of merit in the remaining assignments calling for discussion, and they are overruled. The judgment is reversed and a v. f. d. n. is awarded.