Davis, Hackett Co. v. Western Massachusetts Ins. Co.

1. If the series of papers, referred to in the first exception, had been put in as in themselves containing or importing a contract on the part of the defendants to waive the preliminary proofs stipulated for, in case of partial loss, by the eleventh condition of the policy, and there had been any question as to their meaning, it would have been the duty of the Court to have construed or interpreted them, and to have stated the result to the jury as a matter of law. But we understand the papers were introduced not in that view, but simply as evidence from which taken in connection with other testimony in the case, the jury were asked to infer a waiver as a conclusion of fact. In that view it was for the jury to say what weight or significance they were entitled to have, and we think the Court did right in declining to instruct them whether the papers did or did not, in and of themselves, amount to a waiver.

2. Inasmuch as we have no report of the oral testimony submitted on the trial, it is impossible for us to say whether the second exception is well taken or not, and therefore we cannot sustain it.

3. It was undoubtedly competent for the defendants, while pursuing other modes of appraisal, to insist on the mode called for in the eleventh condition of their policy, and to guard themselves against the inference, that, by pursuing such other, they meant to waive the latter mode, by giving clear and seasonable notice to that effect. But it does not follow that the Court were bound to instruct the jury, as a matter of law, that the defendants had so guarded themselves in this case. The letter containing the notice, referred to in the third exception, was, we think, properly left to the jury to be weighed, in connection with the other testimony, on the question of waiver. If, in view of that letter, the jury had been satisfied that there was no waiver, they were at liberty so to find; if, in spite of that letter, they deemed the facts and circumstances, proved by the other testimony, strong enough to establish a waiver, they ought not to be precluded by positive instruction from the Court from so determining. The exception goes on to state, that the Court instructed the jury to the contrary of the request made by the defendants. If by this it be meant that the Court instructed the jury, as a matter of law, that they were bound to find the waiver notwithstanding the notice, we think it was error. But there is no intimation of any such instruction in the Judge's minutes of his charge. On the contrary, it appears, from those minutes, that he left the question of waiver to the jury, as he is stated to have done in the defendants' first and second exceptions, to be determined by them exclusively, as an issue of fact. This, we think, was right.

4. The defendants do not press their fourth exception, and it is, therefore, unnecessary for us to consider it.

5. The question of reasonable time is, in many, and perhaps in most cases, a question for the Court. It was said by Lord Mansfield, in Tindal v. Brown, 1 Term Rep. 167, "Whenever a rule can be laid down in respect to reasonableness, it should be decided by the Court and adhered to by every one for the sake of certainty." The Courts have accordingly, in many cases, as in the case of notice of dishonor of a promissory note or bill of exchange, or of notice to quit as between landlord and tenant, adopted fixed rules. But there are numerous cases, depending on particular facts and circumstances, in which the Court cannot dispense with the aid of a jury. 1 Starkie's Ev. 455; Howe v.Huntington, 15 Me. 350. The case before us was not a case where, in the language of Lord Mansfield, "a rule could be laid down in respect to reasonableness;" it belonged to a class of cases in which the circumstances affecting the reasonableness of notice would seldom be the same, and therefore we think the Court did not err in leaving the question of reasonableness to the jury.

6. The presiding Judge told the jury that the law required of the plaintiffs, "in answering the interrogatories put to them, and in making the explanations and in exhibiting the books and papers asked of them, both truth and candor." The defendants except because he did not state, as matter of law, whether the answers of the plaintiffs to the interrogatories put by the defendants were or were not a compliance with the provisions of the policy. We find nothing in the policy which requires of the insured, when interrogated, that he shall do more than candidly state the truth in so far as he is able, and whether, in any particular case, he has done so or not, is certainly a question for the jury and not the Court.

We, therefore, deny the defendants a new trial on their motion.