Underhill v. Agawam Mutual Fire Insurance

Dewey, J.

The first point of inquiry presented by the course of the argument in this case is, whether there has been such neglect, on the part of the plaintiff, to comply with the sixteenth article of the defendants’ by-laws, requiring, in case of loss, that the insured shall as soon as possible give a particular account thereof, on oath, and prescribing various matters to be stated in such notice, as to exonerate the defendants from liability. It is said by the defendants, that this by-law was not complied with, there being no direct statement that the plaintiff was sole owner of the estate insured, or whether the same was then under incumbrances, or whether a further insurance had been obtained thereon, at some other office, since the making, of the policy by the defendants.

This whole ground of objection is beyond the matter contained in the specification of defence filed in the case. This was not relied upon, however, in the argument, but the objection was met upon other grounds. To some extent, the statement that the plaintiff was- owner of the property meets the objection ; and it is insisted by the plaintiff’s counsel, that no mortgage or incumbrance or other insurance being stated in the notice, was equivalent to an affirmation that no incumbrance existed, and that no subsequent policy of insurance had been made by any other office upon the property.

However this may be, and without expressing any opinion as to this, the court are satisfied, that it is a good and sufficient answer to the objection now urged to this notice, that no such objection was taken to the form of the notice, when it was given, or any further or more particular information requested; but the refusal to pay the sum stipulated in the policy, by the insurers, was placed upon other grounds, and thereby the want of more full and particular statements in the notice must be taken to have been waived. This principle of waiver has been often applied in similar cases ; Vos v. Robinson, 9 Johns. 192; Ætna Ins. Co. v. Tyler, 16 Wend. 385, 401; and in this court very fully in the case of Heath v. Franklin Ins. Co. 1 Cush. 257, 264.

2 The second ground of objection to the verdict is the rejection oí certain testimony offered by the defendants, tending to show “ that in 1844 wooden casks were the ordinary places of deposit of the plaintiff’s ashes.” To understand accurately this point, it is necessary to bear in mind particularly the course of the trial, and the stage to which the proceedings therein had arrived, at the time the defendants offered to introduce the rejected evidence. The defendants, under their second specification of defence, namely, —“ a violation of the stipulation in said application as to the manner in which ashes should be kept,” had introduced evidence tending to show, that after the date of the policy, the ashes of the plaintiff had been deposited in wooden casks. The plaintiff introduced evidence in reply to this, and called various witnesses who testified that they had never known the ashes to be deposited in a wooden vessel. Upon the cross-examination of these witnesses by the defendants, they were asked, if between 1838 and June, 1846, (the date of the policy,) ashes had not been put in wooden vessels at any time since the house was built. The witnesses having answered in the negative, the defendants then offered other witnesses to show, that in 1844 wooden casks were the ordinary places for the depositing of the ashes. This evidence could, at this stage of the case, be properly offered only to contradict or impeach the witnesses thus called by the plaintiff. The inquiry by the plaintiff to these witnesses was limited to the state of things after the date of the policy. The defendants could not properly open the general question, but only contradict the answers of the plaintiff’s witnesses, in a material matter asked them on the cross-examination. « In this stage of the case, and under these circumstances, the evidence was properly rejected, and the ruling upon this point was right.

The next question raised was upon the instructions given to the jury, and the omission of the presiding judge to adopt the precise instruction asked by the defendants. The ruling, in matter of law, as stated to the jury, was more brief than that asked for, but, we think, substantially embraced the same principles. The right of the plaintiff to recover was to depend upon his having kept the ashes in some mode that was as safe as the mode described in the application. The case of Houghton v. Manufacturers Mut. F. Ins. Co. 8 Met. 114, furnishes the doctrine and illustrates it. It is not necessary to conform to the precise letter of the application, as to the mode of conducting all the various details of the business of the establishment. Other modes equally safe may be used. We think that the ruling was in conformity with the principles which have been sanctioned in various decisions of this court. If the ruling was reasonably liable to the reading of the counsel for the defendants, that is, if the fact of the ashes not having caused the loss by fire, and that the same was obviously attributable to other causes, would of itself justify or warrant the jury in finding, “ that the ashes were kept as safely, as if kept in a brick safe,” the ruling would not be correct; but we do not so understand the ruling, or consider such to be its proper meaning. We suppose the jury would necessarily understand, that the question of the comparative safety of keeping the ashes could not thus be made to depend upon the event of actual loss, by reason of ashes being kept otherwise than in a brick safe. The inquiry covered the whole length of time, from the date of the policy to the time of the fire, and the point in issue was, in what manner they had been kept during the entire period, or whether in any other mode than that stated in the application. That was equivalent to an inquiry, whether the mode actually used increased the hazard and exposure to loss by fire. If it did, then the jury could not have found that the ashes were kept as safely as if they had been kept in the mode stated in the application.

The only remaining point was not seriously urged by the counsel for the defendants. The law in reference to it is well settled. In fire policies, the insurance covers the entire loss of property by fire, if within the limit of the insurance, and no deduction is to be made, because the entire value of the property, the subject of insurance in part, was much greater than the whole sum insured by the policy. To the extent of the loss, if not beyond the amount of the policy, the party may recover, without any deduction by reason of the fact, that the whole property was not destroyed. Liscom v. Boston Mut. Fire Ins. Co. 9 Met. 205; Post v. Hampshire Mut. Fire Ins. Co. 12 Met. 555.

Judgment on the verdict for the plaintiff.