Conway Fire Ins. v. Sewall

Apple TON, C. J.

The defendants in error are the executors of the last will and testament of Nathan Winslow, who, in his lifetime, effected a policy of insurance upon certain property mortgaged to him, which being destroyed by fire, the action, now sought to be reversed, was commenced to recover the amount insured.

The declaration sets forth the policy, the interest of the plaintiffs’ testate ia the -property insured, its loss by fire, and that the defendants, (now plaintiffs in error,) "had due notice and proof, according to the conditions of said policy.” The action was duly entered, a trial had, and a verdict rendered in favor of the defendants in error. Exceptions to the ruling of the presiding Justice, and a motion to set aside the verdict as against evidence, was seasonably filed, and, upon argument before the full bench, overruled. Fox & al. v. Conway Fire Ins. Co., 53 Maine, 109.

After ail this, the plaintiffs in error bring this writ to reverse the judgment rendered in the original action, because the writ contained no allegation that the original defendants "'had due notice and proof of the loss, according to the requirements of the statute of 1861, c. 34, § 5.”

It is to be observed, that issue was joined, that no valid exceptions to the sufficiency of the declaration, by demurrer or otherwise, or to the proof offered in evidence, or to the rulings of the presiding Justice were taken. The plaintiffs in error having had every opportunity to take advantage of the alleged omission of a material fact in the declaration, and having neglected seasonably to do it, now seek to reverse the judgment, which, if the error relied upon was available, might have been prevented, unless cured by amendment.

Whether there is any error, or not, in the former proceedings, is to be determined from the record alone. If that fails to diselose an error, we are not to seek for it ab extra. The record is presumed to be correct. The burden is on the plaintiff in error to allege and prove errors upon which he relies. A judgment will not be reversed, when, from aught that appears, it may have been legally rendered. Spaulding v. Rogers, 50 Maine, 123. "It can never bo enough,” observes Bell, C. J., in Peebles v. Rand, 43 N. H., 337, "to show that there may be an error in their proceedings. The party who brings the writ of error is bound to show that it exists, by proper averments.”

The error alleged, and upon which the principal reliance is placed, is, that the declaration contains no averment that the proof and notice of the loss was in conformity with the statute of 1861, c. 34, § 5.

The declaration avers that the proof and notice of loss were according to the conditions of the policy. The record does not otherwise disclose proof and notice given. The policy is not before us. Starbird v. Eaton, 42 Maine, 569. The declaration shows a good cause of action, if the proof and notice required to be given by the statute are not materially different from those required by the policy. It is not enough that there may be error. To reverse the judgment, it should be affirmatively shown that the variance is such, and so important, that the plaintiffs.in the original suit had no cause of action. This is not even attempted. Eor aught that appears, they may be identical. There is certainly no presumption of law that they are variant. The presumption rather would be, that they are in accordance with the statute, rather than the reverse.

It is urged that the notice and proof required by the statute are to be deemed part of the policy and incorporated therein. If so, then the notice and proof according to the statute would be the notice and proof required by the policy. They would be identically the same. That is, if the statute is part of the policy, then notice according to the policy is notice according to the statute, and would be no cause of complaint.

The plaintiff in error might have demurred to the declaration, if insufficient, or by requested instructions have presented the objection upon which reliance is now placed. This was not done. When objection to the form of a writ might have been taken by plea in abatement, it cannot be assigned as error to reverse the judgment. Objections to the form of .the writ or declaration are cured by verdict or judgment on default. Piper v. Goodwin, 23 Maine, 251. Error does not lie, when the party could have taken exceptions for the same cause and had a summary decision. Flanders v. White Mountain Bank, 43 N. H., 383. "It has long been the practice,” remarks Bull, C. J., in Peebles v. Hand, 43 N. H., 337, "to consider objections which are not taken at the time, or which are not' insisted upon, as waived, and no injustice or inconvenience has ever resulted, so far as we are aware, from that rule. And we think it may well be considered that a party has waived any objection to an order or decision of the Court, to which, being present and having an opportunity to object, he has, at the time, taken no exception.”

But, if the declaration was insufficient, it might have been amended while the cause was on trial, by inserting the allegation that notice and proof of the loss was in conformity with the statute, to which reference has been had. All that is required in amendments is, that the cause of action should remain the same. Within this limit, amendments, to reach the merits of the case, are most liberally allowed. A declaration so defective, that it would exhibit no sufficient cause of action, may be cured by an amendment, without introducing any new cause of action. Pullen v. Hutchinson, 25 Maine, 249.

The Legislature, unwilling that judgments should be arrested or reversed, after a fair trial, have enacted by R. S., 1857, c. 82, § 26, that "no motion in arrest of judgment, in a civil cause, can be entertained,” and, by § 10 of the same chapter, that " no process or proceeding in courts of justice shall be abated, arrested or reversed, for want of form only, or for circumstantial errors or mistakes which by law are amendable, when the person or case can be rightly understood.” It would be a reproach to the law, if the plaintiff in error were permitted to lie by, and, after the expense and delay of a trial, to deprive the defendant of a judgment to which it would seem he was justly entitled.

In Lord v. Pierce, 33 Maine, 350, the action was trover, but there was no allegation of a conversion by the defendant. This defect was held ameadable, and the judgment was not reversed. In Page v. Danforth, 53 Maine, 174, it was held that a declaration, defective in not alleging a promise to the assignee in whose name the action was brought, was amendable, and the original judgment was affirmed.

It is not necessary to determine the true construction of the Act of 1861, c. 34, for, even if the counsel for the plaintiff in error were to be regarded as correct in his exposition of its meaning, still this writ cannot be maintained for a defect amendable, if the amendment had been asked, and to which the attention of the Court was not called till after the expense and delay of a trial had been incurred. Vigilantibus non dormientibus, servit lex.

Judgment affirmed.

Kent, Walton, Barrows, Danpoeti-i and Tapley, JJ., concurred.