Franklin Fire Insurance v. Updegraff

The opinion of the court was delivered, by

Strong, J.

This was an action of covenant upon a policy of insurance, and the defendants in the court below have brought the record here, assigning seven errors. None of the assignments, however, are properly made. They aver that the court erred in their answers to each of the six points submitted, but they do not specify how the court erred, or in what the alleged mistakes consisted. This mode of assigning errors is altogether insufficient. It would be at common law, and it is if possible even more so under the rules of this court. It compels us to gather the complaints of the plaintiffs in error rather from their arguments than from the record, and tends to obscure the matters really in controversy. Passing this by, However, in the present case, we proceed to consider the particulars in which it was alleged on the argument that the court below had fallen into error.

On the trial it was of course a question whether the merchandise insured was destroyed in the building covered by the description in the policy. This was necessarily a question for the jury, and to the jury it was submitted with instructions in substance that if the tenement in which the property was destroyed was a different building from that described in the policy, there could be no recovery. The building was described in the policy as “ on the south-east corner of Third street and Sugar alley.” The store-room immediately on the corner with the rooms above it, appear to have been occupied by Mr. Higgins, and the merchandise of the plaintiffs was i.n store-rooms adjoining on the east. The goods may still, however, have been in the same building, for it is quite possible for one building to contain several storerooms. We find no evidence that the store-rooms were so separated as to make them parts of different buildings. No witness testified that they were under different roofs, that they belonged to different owners, that they were erected at different times, or that there was any substantial and permanent partition dividing them. But it is said there was no evidence, that is, affirmative evidence, that the store-rooms of the assured and of Mr. Higgins were in the same building, and hence it is inferred there was error in submitting to the jury to find that they were. We think there was some such evidence at least furnished by one of the drafts, enough to warrant the submission of the question to ihe jury. Nor can we overlook the fact that the description in the policy name\a “building,” not a store-room, the most comprehensive term which could have been employed. If there be any uncertainty whether all the store-rooms were intended, or only those occupied by Higgins, it is fatal to the case of the insurers, for the language of the policy is theirs, and it is to he construed most strongly against them: Cropper v. The Western Insurance Company, 8 Casey 351.

There is another fact in the case which satisfactorily shows that the policy was understood by the insurers as covering the goods in the rooms in which they were destroyed, and which therefore tends to show that they were in the building described. In 1855 the insurance company gave to the assured written permission to enlarge the “building” in which the merchandise insured was then contained, the same building in which it was subsequently burned. In that permission they spoke of the goods as insured in that building, and required that after the completion of the addition, no goods should be kept in the second story. This evidences very clearly that the parties to the contract understood and dealt with each other upon the basis that the store-rooms of the assured were in the building described in the policy. There was therefore no error in the ansAver of the court to the first point submitted.

The second assignment of error is not pressed, and it is without foundation.

The third point propounded by the court was “that the account of loss furnished by the plaintiffs was not as particular as the nature of the case admitted of, for the evidence shows that it Avas in their power to give the details of their loss.” This was not a question for the court to ánsAver. The jury only could determine what degree of particularity in the account the nature of the case admitted of, and to them it was properly referred, Avith the opinion of the court that the statement Avas not what was required by the policy, if a more particular one could have been given. This was all that the defendants could rightfully ask. They complain that the court added that a particular statement of loss might he waived, and left to the jury to find whether it had been waived in this case. They insist that there was no evidence from which a waiver could be found. The object sought to he accomplished by the requisition of a particular account of loss is to enable insurers to ascertain the amount of their liability while the facts are neAV, and while evidence is attainable. Knowledge of the amount of loss is the substance, the particular statement is hut a means of ascertaining it. When, therefore, it is agreed betAYeen the insurers and the assured that some other mode shall be adopted to fix the amount, the agreement must be regarded as a waiver of the formal requisition of a statement; at least it is evidence of such waiver. The mere presence of an agent of the insurers at the seat of the fire is not enough, but in this case there was much more. There was evidence that it was agreed between the assured and the agent of the defendants to ascertain the amount of the loss by an examination of the hooks, and they were submitted and examined thoroughly. In connection with this, and not without weight in the connection, though it would be of little importance if it stood alone, was the letter of the president of the company acknowledging the receipt of the statement furnished and refusing payment on account of “ circumstances connected wdth the insurance.” The only matter complained of was that there had been something wrong originally in the insurance, not that there had been any breach of a condition subsequent by the assured. Taking this letter and the testimony of Dr. Rankin together, we think there was evidence of a waiver of a particular account of loss, which was properly submitted to the jury.

It is unnecessary to say more in reference to the fourth, fifth, and sixth assignments of error, than that we entirely concur in what was said by the court in answer to the points proposed. The conditions of the policy are to receive a reasonable construction, and no other than that given by the learned president of the Common Pleas would be reasonable, or accord with the obvious intent of the parties when the contract was made.

One assignment of error remains. It is that the court refused to permit a witness to be asked whether a list of items of loss by the fire then shown to him, as taken down by counsél at the arbitration, was a correct statement of the items of loss as sworn to by him before the arbitrators. Our paper-books do not show that any bill of exceptions was sealed to the action of the court. But even if the bill was sealed, it is not easy to perceive that there was any error. The witness had been called by the defendants, and had stated that at the arbitration he gave a particular account of the items of loss as near as he could; that he made it from recollection. The rejected question was not then permissible to discredit the witness. Nor was the list of items attempted to be used as a memorandum to refresh his recollection. It is argued that the question was asked to enable the witness to identify the paper, of course to prepare the way for its reception in evidence. No possible answer of the witness, however, could have made that paper evidence. The refusal of the court to permit an answer is not then a matter of which the plaintiffs in error can complain.

The judgment is affirmed.