McManus v. Western Assurance Co. of Toronto

Gaynor, J.: There is a question of pleading. Compliance by the plaintiff with each of the provisions of the policy for the furnishing of proofs of loss, and for the ascertainment of the amount of loss by agreement or by appraisal, was a condition precedent to the plaintiff’s right of action; and by the terms of the policy the company had sixty days after such compliance within which to pay. It follows that it was for the plaintiff to plead and prove such compliance. Under common-law pleading it was necessary for the plaintiff to particularly plead' each condition precedent and compliance therewith, or a good reason or excuse for non-compliance, such as that the defendant waived or prevented compliance (1 Chit. Pl. [l6th Am. ed.] 332-337; Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328). But under our system of pleading such particularity is not necessary, a general allegation that the plaintiff “duly performed all the conditions on his part” sufficing to enable proof to be made of compliance or of excusable non-compliance (Code Civ. Proc. § 533). The complaint lias this general allegation. The answer, which is a general denial only, was sufficient to put in issue all that could be proved under the complaint. A general denial is always the scientific and sufficient way to put in issue all that the plaintiff has necessarily pleaded and must prove, though it seems to be growing very much out of mind in the profession. The defendant should never plead as a “defense” anything which is embraced within the general issue raised by a general denial. A defense can consist only of new matter,, viz., matter outside of such general issue (Code Civ. Proc. § 500). If pleadei’S would bear in mind that the burden of proof is on the defendant to make out a “defense,” they would be less prone to plead as defenses facts which are not defenses, but within'the general issue. Sometimes the courts take them at their word, and throw the burden of proof on them for their so-called defenses, and thus enable 'the plaintiff to prevail, as in Whitlatch v. The Fidelity Co. (149 N. Y. 45). But the furnishing of the certificate of the magistrate or notary living nearest the place of the fire, provided for in the policy, was not such a condition precedent. The plaintiff was not obliged to furnish it unless “required” to by the company. Such is thelan [558] guage of the policy. She therefore did not have to prove the nega- , ti-ve that .she was not so required; or the affirmative that'she was j and complied ; but it was for the company to plead as a defense the condition precedent to its right to such certificate, viz., that it called j for it of the plaintiff, and then that she failed ■ to.- furnish it. The ! question of compliance with this provision of the policy being therefore not in issue, no further note is taken of it. . ' j The requirement of tlie policy that the proof of loss shall be, “ signed and sworn to ” by the insured means, by general understanding and practice in matters requiring, such verification, that | the oath, or a certificate thereof, shall b,e in writing. This present certificate does not. state that the affiant made oath before the notary. j This defect seems to be fatal to its sufficiency (Proff. Fot. § 68 -Smart xr..JECowe, 3 Mich. 590). Rut the company did uot include it .among its grounds of objection, and thus excluded and waived it.. j The' only objections specified on the head of the oath were that there ; was “ no venue and no affidavit signed by the insured,” There being no requirement in the policy that the insured should sign the affidavitthe latter is untenable (Proff. Not. § 67; Millius v.Shafer, 3 Den. 60). But the former was good, absence of a venue: making an affidavit a nullity (Thompson v. Burhans, 61 N. Y. 52; Proff. Not. § 66). The affidavit of the notary subsequently made and served, on the company did not supply the lack of a validlly certified oath by the insured. >It was her oath in writing, or, a. valid certificate ' thereof, which the company was entitled tó. The proofs of 'loss were thus fatally defective, and the plaintiff may not prevail unless such defect were waived by the company. It now seems to me as matter of law that it was. After stating in its letter of April 18th the said two objections to the certificate of oath, it further'stated therein that it required that each schedule should be sworn to by the person claiming to own . the property contained, in it. This was notice that the oath of the insured would hot be accepted as sufficient, but that there must be, five oaths, viz:, one by each member of the household to the schedule of his .or her prop-' erty; notwithstanding that the policy required the oath of the “ insured ” only. By the said letter it demanded that the insured “ serve new papers in proper form,” and prescribed the form, which ' included the said five oaths. By its letter of May 11th the corn559 party again explicitly exacted this. .It said: “ We insist that each one shall swear to the list claimed for him.” It added that it rejected the proofs of loss sent in, and gave opportunity to put in corrected proofs, saying that such proofs must be sworn to “ by each of the insured in proper form,” meaning by each member of the household. The company thus gave notice that a tender of proofs of loss verified as required by the policy, viz., by the oath of the insured, would not be accepted as sufficient, but that the proofs must be verified by the five members of the household in order to be so accepted, it thereby set at naught and dispensed with the provision of the policy for proofs of loss, and set up a new requirement instead. The rule would seem to be the same here as in the case of obligations to tender performance of contracts generally. If notice be given in advance that the tender, whether of money or of other performance, will not be accepted, it need not be made (Crist v. Armour, 34 Barb. 378; Burtis v. Thompson, 42 N. Y. 246; Bunge v. Koop, 48 id. 225; Howard v. Daly, 61 id. 362; Baumann v. Pinckney, 118 id. 604). It always excuses the performance of a condition precedent if it be hindered or waived by the other party (Langdon v. Burrill, 21 Vt. 466). One who declares to the other party to a contract his intention not to abide by it commits thereby a breach upon which action may be brought at once (Bish. Cont. § 1428). And in insurance law, a denial'by the insurer of liability in any event, is held to operate as a waiver of the provisions requiring notice and proofs of loss, and submission to arbitration (Joyce Ins. §§ 3257, 3373). A notice in advance that proofs of loss made in a- form different to that required by the policy will be insisted on, and that proofs made in the form required by the policy will be- rejected as insufficient, seems to present an equally clear case of-waiver. It is insisted by the defendant that whether the company had delayed so long that it must be deemed to have abandoned the appraisal or arbitration was a question of law for the court, and that it was error to submit it to the jury. Being informed by the insured by letter on June 8th of the specific reasons why she objected to the appraiser it had named as not “disinterested,” it made no response for twenty one days and did nothing meanwhile in the matter of the loss, though it had its office and transacted busi [560] ness in the same city where the insured lived and the fire occurred; whereupon this action was brought on June 29th., It seems to me'it was not error to submit the question to the jury. To be sure, it is often repeated that what is a “reasonable time is, when there is no dispute' as to the facts, a question of law for the court” (Hedges v. Hudson River R. R. Co., 49 N. Y. 225; Roth v. Buffalo, etc., R. R. Co., 34 id. 553; 67 id., 277). Nevertheless, the rule is not generally so understood, especially in the trial of causes, but is every day taken and stated to be, that when the facts are undisputed they present a question for the court, unless different inferences may he reasonably dream} from them, in which case the question is for the jury. Moreover, the., undisputed fact in this case of the delay of twenty one days had to be considered in the light of the society of .facts in which it was found. The delays which had already occurred, and the difficulty of preserving any longer the remains and evidences of the goods damaged and destroyed, bore directly on the question of whether it was an undue delay. The plaintiff was not obliged to go into an appraisal before an arbitrator appointed by the company who was not disinterested, and unbiased, and the evidence on that head presented a question of fact for the jury. Having found against the competency of the arbitrator, the- jury then had before it properly the question of abandonment of the arbitration. The action seems to be properly brought in the name of the insured alone for the entire loss. The policy in effect recognizes her as taking the insurance not only for herself individually, but as trustee for the members of her household, and this enables her to recover the entire loss (Stillwell v. Staples, 19 N. Y. 401; Waring v. Indemnity Co., 45 id. 606). At all events, if the rather obscure objection made on this head, in the motion to dismiss for variance, be understood as. an objection that all interested should have been joined as plaintiffs (Boynton v. Ins. Co., 16 Barb. 254; Winne v. Niag. Ins. Co., 91 N. Y. 192), it is unavailable for not having been pleaded in- the answer (Code Civ. Proc. §§ 498, 499). There is no requirement -in the policy-,that, the proofs of loss should- state the cost price of the articles, and the company had no right to make the objection on that head. .. The requirement is to state “ the, cash value of -each item thereof and the amount of loss [561] thereon.” The inventory which the insured is required by the policy to make “ forthwith ” after the fire, “ stating the quantity and ■cost of each article and the amount claimed thereon,” is confined "by the terms of the policy to damaged articles, and does not embrace articles totally destroyed ; and there is no requirement that it be made part of the proofs of loss. The motion for a new trial is denied.