Ben Franklin Fire Insurance v. Flynn

Mr. Justice Gordon

delivered the opinion of the Court

There is very little even of technical difficulty in this case, and nothing at all of which the plaintiff ought to complain, if it looked to the justness of its obligation rather than for some loophole of escape from a debt which in all honor and honesty it ought to pay. The evidence furnishes not the slightest intimation that the plaintiffs were guilty of any kind of fraud, either in intention or in fact. The loss occurred without fault or neglect on their part, and if there was any default in either the preliminary notice or statement of loss, it was of a character so technical that it could scarcely be avoided by any one not an expert. As to these, however, no exception is taken to the first; it is admitted that it was correct both in form and service; and as to the items of the other, the jury, under the instruction of the court, have found that they were as full and specific as they could be under the circumstances. But, inter alia, it is alleged that this statement' was not forwarded to the company’s office within the time required by the policy. The requisition is that it shall be furnished as soon as possible after the fire.

But, as we held in the case of the Home Insurance Co. v. Davis [ante, p. 280], this phrase must be taken to mean within a reasonable time after the loss. The required statement was forwarded within thirty' days from the date of the fire; we think a delay no greater than this not unreasonable, at least not so unreasonable as to require the question to be withdrawn from the jury and determined as a matter of law. The delay in the case cited was three months, yet under the circumstances, it was held that the submission of the question to the jury was proper.

But we have yet a couple of objections, still more technical in their character than the above, to dispose of.

1. It is required by the policy, that statement shall be made of any other insurance on the property and copies of the written parts of the policies set out in the proofs of loss. It is said that the latter part of this condition was not complied with. Taken literally this is true, but practically it is not true, for not only were the names of the several companies, the numbers of the policies and the amount by each one insured,- given, but in addition it was stated that the written parts of these several policies were substantially the same as that of the Ben Franklin.

2. It is objected that the affidavit to the statement was not made before, and the certifícate not made by, a justice of the ■ peace nearest the place of loss, but before and by a notary public some five or six miles distant therefrom.

The fire was at Turkey city, and the notary public lived at Edenburgh, the place of Hamm’s residence, which circumstance accounts for his not complying literally with the prescribed condition. Were we called upon so to do, we might well say that both these conditions were substantially complied with, but as this whole matter was referred to the jury on the question of waiver, we are not required to pass upon a point of this kind. The counsel for the defence think the proofs of a waiver were not sufficient to warrant the court in so submitting them, but we are of a different opinion. These defects were at best, but formal, and we incline to the opinion expressed by Mr. Justice Siiarswood, in Beatty v. Insurance Co., 16 P. F. Smith 9, that it is the duty of the insurer,.where the proofs of loss are put into its possession in time, to notify the insured of any formal defects which may be discovered therein, and have them corrected. From this it would follow that where this is neglected such defects must be regarded as waived.

Beyond this, however, the testimony of Dilworth, Ellis and Thorn, was sufficient to establish a waiver of even more material defects. Where a forfeiture is to be worked by the breach of a collateral condition, such breach must be promptly taken advantage of; there must be nothing else alleged as a reason for non payment, and especially must not the assured be led astray by propositions of settlement on grounds other than that of the alleged breach of the condition. But this is exactly what was done in this case.

The objection to payment was the compromise made with the Howard and other companies, and Riddle, the secretary of the company, proposed to pay on a similar basis or rate, which proposition was promptly accepted by the plaintiffs, and it was not till after this acceptance that there was any allusion to the defects in the statement of loss.

Even Riddle’s letter of the 16th of October, enclosing blanks for corrected proofs, throws no light upon the defects of the former proofs but only directs attention to those furnished to other companies, a direction which evidently looks more to the amounts for which those companies settled than to any particularity of items. It is moreover remarkable that at no time was there any special defect in the statement pointed out, or request made to have such defect corrected. But we need not go into the particulars of this testimony; there was enough of it to submit to the jury, and in so submitting it the learned judge was fully sustained by the cases of Lycoming Mutual Ins. Co. v. Schollenberger, 8 Wr. 259; Inland Ins. Co. v. Stauffer, 9 Ca. 397, and Home Ins. Co. v. Davis, above cited.

Then we have an objection to the proofs offered to establish the waiver, for that the declaration alleges that waiver to have occurred in a manner different from that set forth in the offer of proof. But as the narr. without the special clause, the subject of controversy, would have sustained the 'offer, we may treat this part of it as surplusage.

We understand, indeed, that by the strict rules of pleading, if an allegation is made in the declaration which may be material in the trial, though immaterial in the pleadings, it must be proven as laid. But in our times the severe rules of pleading find but little encouragement, and even so far back as the case of Repsher v. Shane, 3 Teates 575, this doctrine of variance was not very strictly applied. In this case the suit was on a promise of indemnity against the recovery of damages from the plaintiff by a third person; in the declaration the amount of damages was laid at a certain sum, and on the trial the proof offerréd was of a different sum ; yet the variance was held not to be fatal, though certainly in a case of this kind, accurate proof of the damages sustained by the plaintiff was material. Following in the track of this case of Repsher v. Shane, many later cases have, like it, very much relaxed 'the strictness of the old doctrince of variance. Among these are Grubb v. The Mahoning Nav. Co., 2 Har. 302; Emerick v. Kroh, Id. 315, and Filson v. Dunbar, 2 Ca. 475. On the whole, therefore, we cannot say that even on this point the ruling of the cogrt below was wrong.

J udgment affirmed.