Langan v. Royal Ins. ( 1894 )

Opinion by

Mr. Chief Justice Stebbett,

The policy in suit contains, inter alia, the following clause:

“ The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property therein described, and submit to examination under oath by any person named by this company, and subscribe the same; and as often as required, shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof, if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.”

There was evidence tending to show that plaintiff was called on by defendant for duplicate bills of articles contained in his statement of loss; and, in affirming defendant’s third point for charge, the learned trial judge. instructed the jury, in the language thereof, that if he “could have furnished them, but failed to comply with the request, he had no right to bring the present action, and the verdict must be for defendant.” This instruction was undoubtedly correct.

The clause above quoted is manifestly reasonable, and it was the duty of the plaintiff to comply with the demand. If he was unable to produce duplicates of the bills, the burden was on him to show, at least, that he made a reasonable effort to do so, and was unsuccessful: Mispelhorn v. Farmers’ Ins. Co., 53 Md. 473; O’Brien v. Com. Ins. Co., 63 N. Y. 108. In the former it is said: “ Whether it was possible or impossible for the plaintiff to produce duplicate bills of purchase, was purely a question of fact to be determined by the jury from all the evidence before them, and although it might be found that it was impossible to produce duplicate bills of purchase of a certain class, that fact did not excuse the non-production of those that could have been obtained by a bona fide effort on his part. The plaintiff could not be relieved from the duty imposed on him by his contract, by simply sending out his wife to procure duplicate bills from parties with whom he had been in the habit of dealing; nor could he meet the requirement of the condition of the policy by showing that he supposed or believed that duplicate bills could not be obtained.”

In the case at bar, the plaintiff not only failed to show that he could not procure the duplicate bills demanded, but he proved by his own testimony, most conclusively, that he never made the slightest effort to obtain them. Without referring in detail to his testimony, his answers to the following questions will show the utter indifference he manifested to the demand of the company: “ Q. Did you make any effort to get duplicates ? A. I did. Q. What efforts did you make ? A. I didn’t make any in particular. Q. The fact is you made none ? A. I didn’t make any, no. Q. You made none ? A. No.”

It- follows, from what has been said, that there was no testimony to warrant the instructions contained in those portions of the charge recited in the second and third specifications; and, in view of the plaintiff’s own testimony that he made no effort to comply with the just and reasonable demand of the company, the learned trial judge should have directed a verdict for defendant, as requested in the sixth point.

While insurance companies, in dealing with their patrons, are held to the exercise of entire good faith, a like duty is due by the insured to their underwriters. That duty the plaintiff in this case evidently determined to shirk.

Judgment reversed.