Cumberland Mutual Fire Insurance v. Giltinan

The opinion of the court was delivered by

Beasley, Chief Justice.

This suit was on a fire policy. The only defence was that the assured, in violation of a condition of the policy, had put a certain other insurance on the property without the assent of the company. The condition referred to was as follows, viz.: “ In case the assured, or the assigns of the assured, shall hereafter make any other insurance on the same property, and shall not, within ten days, give notice thereof to this company, and have the same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease and be of no further effect.” This stipulation was the subject of a special plea, the allegation of which was that the assured had, without notice, insured his property for the sum of $1000 in a company known as La Confiance, of France. The only testimony showing the ■existence of this latter policy consisted in two statements made in writing by the plaintiff to the defendant, the one being contained in the proof of loss which was called for by the terms of the policy, and the other in a list of the policies upon the property and the proportionate sum due upon each. Relying on this testimony, the counsel of the defendant, at the trial, insisted that it was undisputed that the condition of the policy above mentioned was broken and the assurance was therefore avoided, and to that effect demanded an instruction to the jury. This request was refused, and a verdict directed for the plaintiff.

Therefore, it is obvious that two questions are now presented for solution, viz.: first, Avas the evidence put in competent to prove the existence of the unauthorized policy; and second, on the assumption of its admissibility, was a breach of the condition in question exhibited.

On the first point, the counsel of the defendant takes the position that according to what was claimed to be the modern rule of evidence, it was legitimate to prove the existence of this policy of insurance by the admissions of the plaintiff, without the production of the instrument, and without accounting for its absence. , The broad ground was taken that the admissions of the .contents of a written document, its nonproduction being unexplained, are receivable as primary evidence of its contents. Eor this doctrine, the case of Slatterie v. Pooley. 6 Mes. & Wels. 664, and the series of decisions to which it gave rise, were relied upon as the leading authorities in its favor. This class of adjudications, it is clear, goes far in the direction of sustaining the rule as claimed. But these decisions are all of modern date, originating in the year 1840, and have not received anything like universal approval by the courts of this country, and it is certain that they are opposed to the immemorial administration of the law in this state. That a written instrument whose existence is put in issue by the pleadings need not be produced at the trial, its absence being unexcuséd, is a doctrine that as a part of our own law and as a general rule of evidence, has, it is safe to say, never heretofore been advanced in any of our courts. With us, the ancient, and, as it is deemed, the safe, principle has prevailed, that the document is the primary evidence and the admission of its contents secondary evidence, and that the latter cannot be resorted to as long as the former is available. This rule has never been understood to extend to matters aside from the issue and merely incidental to the trial. Thus, the interest of a witness, and similar concerns, could always be shown without the production of the document by force of which such interest had been acquired. Nor was the practice which enforced the general rule without its exceptions; for there were some admissions so formal and solemn in their character, such as admissions in the progress of a suit to be used at the trial, that they were ever regarded as intrinsically possessing all the force of primary evidence. But irrespectively •of such limitations and exceptions, the rule that a document forming the basis of the issue must be produced, or its absence excused, before secondary evidence can be resorted to, has, as far as is known, been enforced from the introduction in this commonwealth of the common law to the present time.

But while the evidence in question is not to be validated by force of the theory just criticised and repudiated, we still think it was competent, and. had the effect to prove the existence of the policy in question. Such evidence was not constituted of an ordinary admission, but an admission of a character so formal and, in view of the purpose for which it was designed, so accredited, as to put it on a level with admissions in a course of law, and which are intended to dispense with primary testimony. It was a part of the agreement of assurance that the proof of loss required, upon the happening of a fire, to be furnished to the company should contain a statement of the several insurances upon the property. Such statement was required to be verified by oath, and if it wei’e wilfully false the claim against the company was to become void, its object being to afford to the company a safe basis for its action in dealing with the assured. We think that admissions thus authenticated were properly received at the trial under the circumstances then present, and that their effect was to prove the policy in question.

But, notwithstanding this result, we are of opinion that the instruction to the jury to find for the plaintiff was correct. This view is plainly justified when reference is made to the issue which the defendant was bound to sustain.1 That issue required proof of two facts: first, that the assured had taken out an unauthorized policy, and that such policy had run for ten days without notice to the company, and without its written sanction. As we have seen, the defendant proved, by the admissions of the plaintiff, the taking out of the policy referred to, but there was no proof whatever with respect to the date of such instrument ,or to the time when it came into existence. For aught that appears, it may have been obtained within five days before the fire, and if so, the policy in suit was not avoided. A full defence was not made out, and, consequently, the instruction of the trial judge was right.

Let the judgment be affirmed.

For affirmance—The Chancellor, Chief Justice, Depue, Dixon, Mague, Parker, Van Syokel, Brown, Clement, Cole, McGregor. 11.

For reversal—Paterson, Whitaker. 2.