Continental Insurance v. Lippold

Maxwell, J. On the 11th day of May, 1870, the plaintiff in error insured a dwelling house for defendant in error, situated in the town of Arago, for the sum of $350.00, the policy to continue in force until the 11th day of May, 1875. The policy contained- a provision that in case of loss, defendant in error should immediately notify the general agent at Chicago. The insurance was effected through a local agent residing in the town of Arago. On the 16th day of April, 1871, the house was destroyed by fire. A few days after the fire, defendant in error requested the local agent at Arago to notify the company of the loss. The local agent stated that he had seen the general agent, and had a conversation with him in reference to the loss. About the 15th day of July, 1871, defendant in error employed one Gus. Doerfelt to write a letter for him to the general agent of the company, stating the loss of the property. On the 16th day of August, 1871, the .general agent addressed a letter to defendant in error, stating that there were suspicious circumstances connected with the fire which ought to be explained. On the 1st day of January, 1872, the defendant in error made formal proof of loss, and transmitted the same to the general agent at Chicago. Suit was instituted against the company, in the district court of Eichardson county, on the 22d day of January, 1872. The cause was tried by a jury, and the defendant in error recovered the sum of $253.78. The only errors assigned are: First. That the court erred in overruling the motion for a non-suit. Second. That the court erred in overruling the motion to set aside the verdict. The only objection urged by the plaintiff in error, in this court,.as ground for reversing the judgment of the court below, is that no notice of the loss was given, in the time required by the terms of the [395] policy. No action can be maintained on the policy until the proof of loss is made, or waived by some act of the insurer. Yet it is a sufficient compliance with the condition of a policy, requiring notice of loss to be given “forthwith” or “immediately,” that the party has used due diligence under all the circumstances. New York Insurance Co. v. National Insurance Co., 20 Barb., 475. Bumstead v. The Dividend Insurance Co., 12 New York, 81. In the case of the Columbian Ins. Company v. Lawrence, 2 Peters, 50, a certificate accompanied the proof of loss not in conformity to the conditions of the policy. The case was reversed in the supreme court and remanded to the circuit court and afterwards dismissed by plaintiff without prejudice. A new certificate was procured from a magistrate in compliance with the rules of the company, on the 14th day of February, 1829, five years after, the loss, and an action was commenced thereon in September, 1831. The condition of the policy required “all persons assured by the company, sustaining any loss or damage by fire forthwith to give notice to the company, or as soon thereafter as possible to deliver in as particular an account of their loss or damage, signed with their own hands, as the nature of the case will admit of, and make proof of the same by their own oath and affirmation, and by their books of account, or proper vouchers, as shall be reasonably required; and shall procure a certificate under the hand of a magistrate, or sworn notary of the town or county in which the fire happened, not concerned in such loss, directly or indirectly, importing that they are acquainted with the character and circumstances of the person or persons insured; and do know or verily believe that he, she or they, really and by misfortune, without any kind of fraud or evil practice, have sustained by such fire, loss or damage to the amount therein mentioned; and until such affidavit and certificate are produced [396] the loss claimed shall not be payable.” The court, says Story, J., 10 Peters, 513, “ We think the true intent and meaning of it is, that the certificate must be procured within a reasonable time after the loss. It would be a most inconvenient course to adopt a different construction, not required by the terms of the clause or the context, as it would make the material inquiry not the production of the certificate, but the possible diligence of procuring it. * * * So that it is manifest, that the assured would not be entitled to maintain any action, until he had furnished all the preliminary proofs; so that the delay is not injurious to the company, but solely to the assured, by depriving him of his right to judgment until it is procured. * * * We are of opinion, that under all the facts and circumstances, the non-production of the proper certificate at an earlier period is fully accounted for; and that the proper certificate was procured in a reasonable time. * * * If the company had contemplated the objection, it would have been ordinary fair dealing to have apprised the plaintiff of it.” Westlake v. Saint Lawrence Ins. Co., 14 Barb., 206. Clork v. Mew. Eng. Ins. Go., 6 Gush, 342. Francis ■ v. Ins. Go., 1 Butcher, 78. Bartlett v. Union Mutual Ins. Go., 46 Me., 500. The clause in a policy as to preliminary proofs, notice, etc., should always be construed with great liberality; and it only requires reasonable information to be given so that the company may be enabled to form some estimate of its rights and duties before it is obliged to pay. McLaughlin v. Wash. Co. Ins. Co., 23 Wend., 525. Lawrence v. Ocean Ins. Co., 11 John., 240. Smith’s Mercantile Law, 516, note 10. In this case, no objection is made to the form of the proof of loss furnished in July, 1871, nor is the refusal to adjust the loss put on the ground that it is not in proper form. If objection is made by the company to the form [397] of the proof of loss, it is its duty to notify the party of the alleged defect, and failing to do so, it will be deemed waived. A contract of insurance, like other contracts, should receive, if possible, such construction as will carry it into effect. The insurer having received the consideration for assuming the risk, there is no reason why he should be discharged from liability in case of loss, on slight or merely technical grounds. In this case it was a proper question to the jury, whether the plaintiff in the court below had used due diligence in furnishing the preliminary proofs of loss. The motion for a non-suit was therefore properly overruled; and the question having been fairly submitted to the jury, who found in favor of the defendant in error, we see no error in the record. The judgment of the district court is therefore affirmed. Judgment affirmed. Chief Justice Lake concurred.