Ferrer v. Home Mutual Insurance

By the Court, Crockett, J.:

The statement filed by the defendant, whether treated as a statement on motion for a new trial, or on appeal, must be disregarded. It does not contain the specifications required by section 195 of the code, of the particulars wherein the evidence was insufficient to justify the decision and judgment, nor of the errors in law occurring at the trial and excepted to by the defendant, nor does it specify the particular errors or grounds upon which the defendant intends to roly on the appeal, as required by sec. 338.

We have repeatedly decided that without these specifications the statement must be disregarded.

The defendant, it is true, in the notice of intention to move for a new trial, inserted certain specifications in these respects, and claims that this notice was incorporated into, and became a part of, the statement.

But, if so, the record before us does not show it. The notice was filed and served October 28'th, 1871, and the statement was settled and agreed to by a stipulation of counsel November 2d, 1871. As presented by this record, the statement, after setting out the evidence and certain rulings of the Court in the progress of the trial, appears to terminate. Next follows without any note or memorandum, indicating that it was intended to be inserted in the statement, the notice of intention to move for a new trial, and this is followed by certain affidavits to be used in support of the motion.

In this respect the case is very similar to Spencer v. Long 39 Cal. 703. Neither of these papers has properly any place in a statement on motion for a new trial. Then comes a stipulation of counsel, which is designated in the transcript as “stipulation attached to statement,” certifying to the correctness of the statement. The defendants filed a written motion for a new trial, “for the reasons and on the grounds as set out in their notice of intention to move for new trial and the affidavits attached thereto, and the statement this the 2d day of November, 1871, agreed upon and certified to be correct by the attorneys of the plaintiff and defendants, which notice of intention to move for a new trial and said affidavits of G. A. J ones and Chalmers Scott are hereto attached and made part hereof.”

This would seem to imply that the notice of intention and the affidavits formed no part of the statement. Otherwise it would have been wholly superfluous to annex them to the written motion and incorporate them into it. It is so easy to follow the directions of the statute in preparing the statement, and we have so frequently had occasion to animadvert upon the loose practice in this respect which has prevailed, that we are not inclined to look indulgently upon such irregularities as have occurred in this case.

The statement must be disregarded for the reasons already stated.

‘But in the progress of the trial several points made by the defendants were preserved by bills of exception, which form a part of the judgment roll, and which we are at liberty to consider on the appeal from the judgment. The first exception relates to the refusal of the Court to permit an amendment of the answer during the progress of the trial. But a conclusive answer to this point is that the amendment was unnecessary, inasmuch as it tendered -no new issues, and all the matters of defense which it sets forth Could have been proved under the former pleadings. The second exception, founded on the ruling of the Court, in respect to an alleged variance between the copies of the policies annexed to the complaint and the originals Avhich were offered in evidence, is equally Avithout merit. The endorsement on the policies, of the name and place of business of the company, are no part of the instrument. This is too plain to admit of discussion. The next exception is to the ruling of the Court, in admitting in evidence and refusing to strike out the letters of administration on the estate of Aguirre. But as Ave cannot review the evidence, for want of proper specifications in the statement, it is impossible for us to determine whether . or not the letters of administration were pertinent, on the question of the plaintiff’s title and insurable interest in the property covered by the policies.

In the course of the trial Berry Hayes, a witness for the plaintiff, was allowed to testify, against the objection of the defendant, to the service of the notice of loss on one Francis, as the agent at San Diego of the defendant, and to a waiver by Francis as such agent of certain proofs of loss required by the policies.

This ruling also was excepted to, and the point is preserved in a bill of exceptions. But, as already stated, we cannot review the evidence, and it may be that there was evidence tending to show that Francis was the general agent of the defendant, with full authority to accept service of the notice of loss, and to waive the production? of the proofs of loss required by the policies. We are not at liberty to look into the statement in order to ascertain whether or not there was such evidence, and as the appellant must affirmatively show error, we cannot infer that the Court erred in admitting testimony which, under a certain state of facts, may have been pertinent and competent. We cannot determine from this record, with a statement so defective that we are compelled to disregard it, but that there was proof of an express waiver by the defendant of the notice and proof of loss, in which event the testimony of Hayes could have done the defendant no possible damage. This disposes of all the bills of exception found in the record.

But the motion for a new trial was founded in part on the ground of surprise, in the testimony of Hayes as to the admissions and waiver of Francis; and in support of this ground of the motion, the affidavits of defendant’s attorneys were produced, to the effect that Francis had informed them that “he had never had anything to do with the policies sued on; that he did not know there were such policies until after the fire,” and that “he had taken no action in relation thereto as the agent of defendants;” that Francis expressed his belief that the plaintiff’s action could be defeated on the ground that “ he had not produced a certificate of a Magistrate, Notary, or Commissioner, as required by the policies; that Francis now resides at Chicago, and on another trial, his testimony could be had to the above effect; that the attorneys were surprised by the admissions of the testimony of Hayes, as there was no allegation in the complaint which he thinks warranted it.”

The trial commenced on the twelfth and ended on the twentieth of October, and the testimony of Hayes was given several days before the conclusion of the trial. If the defendant was'surprised by this testimony, there-should have been a motion to continue the cause in order to procure the deposition of Francis. In such cases the application for relief must be made at the earliest convenient time, and certainly without unreasonable delay. A party should not be allowed to speculate on the chances of a favorable decision, and after he has lost his cause, move for a new trial on the ground that he was surprised by the introduction of certain testimony by his adversary. “It is better for the purposes of justice and the convenience of Courts and litigants, to afford relief at once and on the spot, if it can be done.” (Schellhouse v. Ball, 29 Cal. 608.) The rule was somewhat relaxed in Delmas v. Martin, 39 Cal. 557. But the case was peculiar, and we are not.inclined to extend the relaxation beyond the facts of that case.

The only remaining question is, whether the Court erred in overruling the demurrer to the complaint. The grounds of the demurrer are—1st. That the complaint does not aver that the plaintiff was the entire, unconditional, and sole owner of the property insured. 2d. That there is no averment that, after the fire, the plaintiff produced to the defendant a certificate of a Magistrate, Notary, or Commissioner, as required by the policies. 3d. That the complaint fails to state that the loss was not occasioned by one of the excepted causes specified in the policies.

One of the conditions of the policies is that “if the interest of the assured be any other than the entire, unconditional, and sole ownership of the property,” the policy shall be void. There is no express averment in the complaint that the plaintiff- was the entire, unconditional, and sole owner of the property in the language of the policy. But it is described as “his property,” and that he “had an interest in the property insured, and each and ail thereof, as the owner thereof, to an amount exceeding the amount of said insurance,” and each and “ all thereof then being the property of this plaintiff.” This, we think, was a sufficient averment of ownership. “ The allegation that the plaintiff is the owner of the land is, in substance, an allegation of seizin in fee.” (Garwood v. Hastings, 38 Cal. 218; Payne v. Treadwell, 16 Cal. 242.)

The second ground of demurrer is not tenable. If the production of the certificate of a Magistrate, Notary or Commissioner was a condition precedent, without the performance of which the plaintiff had no cause of action, then it was included within the general averment in the complaint “that the plaintiff duly fulfilled all the conditions of said insurances respectively on his part.” Under Section 60 of the Practice Act, this was a sufficient averment of the performance of all the conditions precedent.

The third and last ground of demurrer is founded on the fact that the complaint fails to aver that the loss did not accrue from one of the excepted causes specified in the policies. Amongst other exceptions it is provided, that the company shall not be liable, if the loss be occasioned “ by the falling of any building insured, or containing property-insured by this policy, or by fire ensuing therefrom.” The complaint avers that the loss was not caused “ by the falling of any building,” but omits the words “ or by fire ensuing therefrom.” It is averred, however, that the loss was caused by fire, and not by the falling of any building, which, we think, is equivalent to an averment that it was not caused by a fire which ensued from the falling of a building. The averment on this point is, perhaps, not as explicit as accurate pleading would have required, but we think it is sufficient, and no good could result from reversing the case on so slight a defect in a pleading which could be amended on another trial. We are satisfied the judgmentis in accordance with the merits of the cause, and ought not to be disturbed.

Judgment affirmed.

A rehearing was granted after the foregoing opinion was delivered, and after argument, the following opinion was delivered.

By the Court, Crockett, J.:

The argument on the rehearing has failed to convince us that the former opinion delivered in this cause ought to be in any respect modified; and it will, therefore, stand as the opinion of the Court.

Judgment and order affirmed—remittitur forthwith.