Schilansky v. Merchants & Manufacturers Fire Insurance

Spruance, J., charging the jury: Gentlemen of the jury:—This action is brought in the names of Joseph Schilansky and Sarah Schilansky for the use of Bartholomay Brewing Company, and is brought by the proper parties; the Shilanskys being the persons with whom the contract of insurance was made; and they having the legal right to sue upon it notwithstanding the fact that the defendant company marked the policy for the use of said brewing company. [306] It is not controverted that the paper admitted in evidence dated December 9, 1901, purporting to be the preliminary proof of the total loss by fire of the insured property, was made by the plaintiffs on the day of its date and was received by the president of the defendant company on the eleventh day of the same month; which was within thirty days from the date of the alleged loss and more than ninety days before the commencement of this action. It is contended by the defendant company that this paper was not such a detailed proof of loss as was required by the policy of insurance to entitle the plaintiff to maintain this action. In considering the provisions of policies of insurance relating to matters required to be done by the insured, subsequent to the loss, which do not alter the risk of the insurer or increase the liability, it is the prevailing practice of the courts to give to such provisions a construction favorable to the insured so far as the same can be reasonably done. It is the duty of the Court to construe written papers which have been admitted in evidence, and to instruct the jury as to the meaning and effect of the same. We have carefully examined and considered the provisions of the policy of insurance sued upon in respect to the proof of loss required to be made before suit and also the said paper of December 9, 1901, purporting to be the preliminary proof of loss, and we are of the opinion, and now instruct you that the requirements of the policy as to preliminary proof of loss have been substantially and sufficiently complied with. This is especially so in view of the uncontroverted testimony in the case that there was a total destruction of the insured property and that all of the books, accounts and papers of the plaintiffs were also at the same time destroyed. This paper which we have determined to be a sufficient preliminary proof of loss to meet the requirements of the policy in that regard, is not to be considered by you as proving or tending to prove the ownership of the property at the time of the execution [307] of the policy or at the time of the loss, or the fact of the loss, or the amount of the loss, or any other material fact in issue in this case. These latter questions, vía, as to the ownership of the property, the loss, the amount thereof, and the other material facts, are to be determined by you from the testimony of the witnesses examined before you in this case. If you find a verdict for the plaintiff, it should be for the value of the property destroyed, not exceeding $500 for each of the three classes of property described in the policy, and not exceeding $1500 for the whole, with interest thereon from a date ninety days after the delivery of the proof of loss to the defendant company. Verdict for plaintiff for $1602.75.