Spring Garden Mutual Insurance v. Evans ex rel. Riley

Eccleston, J., delivered the opinion of this court. Whether there was error in refusing to grant, the second prayer of the defendant, contained in the second bill of exceptions, we propose first to consider; and in doing so the plaintiff will be allowed the full benefit of all the testimony of his witnesses, Hammond and Lavender. For which purpose the correctness of the decisions below, in regard to the first and third bills of exceptions, will be conceded, without, however, deciding whether they were correct or not. The prayer alluded to asks the court to instruct the jury, “that there is no evidence in this cause that such preliminary proof of loss, as required by the 9th condition of policy, was furnished by said Evans before the institution of this suit, and that there is no evidence that such preliminary proof of loss was waived by defendant, and that the plaintiff is not entitled to recover in this suit.” The following is the language of the 9th condition of the policy: “Persons sustaining any loss or damage by fire, shall forthwith give notice thereof in writing to the company, secretary or agent. And as soon after as possible, they shall deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hand. And they shall accompany the same with their oath or affirmation, declaring the said account tobe true and just; showing also whether any and what other insurances have been made on the same property; what was the whole value of the subject insured; in what general manner (as to trade, manufactory, merchandize or otherwise,) the building insured or containing the subject insured, and the several parts thereof were occupied, at the time of the loss, and who were the occupants of — 14 — such building, and when and how the fire originated, as far as they know or believe. They shall also produce a certificate under the hand and seal of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, stating that he has examined the circumstances attending the fire, loss or damage alleged, and that he is acquainted with the character and circumstances of the insured claimants; and that he verily believes that he, she or they, have, by misfortune, and without fraud or evil practice, sustained loss and damage on the subject insured, to the amount which the magistrate or notary public shall certify. And until such proofs, declarations and certificates are produced, the loss shall not be payable.” In reference to the preliminary proof thus required, the plaintiff examined G. W. Hammond, who says: “ It was, I think,' on the 22nd of March 1849, two days after the fire, that I went to Baltimore. In compliance with the request of Mr. J. P. Riley, I called, on the 23rd, the day after my arrival, at the office of Mr. Lovegrove, agent for this company, to present certain papers and to arrange the settlement, of the loss. I was informed by a person who I took for the clerk of Mr. Lovegrove, that he, Mr. Lovegrove, was in the country and would not be in until late in the evening. I left with the clerk for Mr. Lovegrove’s inspection the papers sent by Mr. Riley, among which were a notice of the loss and a transfer of the policy to Mr. Riley. I accordingly called again on the following day and found Mr. Lovegrove in the office. I cannot now remember all that passed in conversation between Mr. Lovegrove and myself, but this I remember, that he declined taking any step in the matter, returned me the papers I had left for his inspection, and referred me to the office of the company in Philadelphia, giving as a reason for this that the company was about to close and discontinue the agency in Baltimore. I went to Philadelphia the following day, I think, and soon after my arrival I called at the office of this company, saw, I think, the president and secretary of the company, stated what had passed at the office of their agency in Baltimore, and presented the papéis of Mr Riley. — 15 — I was informed by the president that their board would meet on a certain day, and then the matter would receive proper attention, but until then nothing could be done. As this day would not arrive until after my departure/1 requested him to report the action of the board to Mr. Riley, which he said he would do.” If this testimony is the only evidence on which the plaintiff can properly rely to show a compliance with the 9th condition of the policy, the defendant certainly had a right to ask the court to instruct the jury there was no evidence that such preliminary proof as the policy required had been furnished; for the witness, Hammond, in speaking of the papers which he took to the agent in Baltimore, and afterwards to the office of the company in Philadelphia, does not profess to give the contents, or to speak of the character, of any of them, except that he says, “among them were a notice of the loss and a tranfer of the policy.” Instead of making legitimate and reasonable inferences, a juiy would be travelling in the fields of conjecture and wild speculation were they to find upon such proof as this that not only the notice of the loss but the other requirements of the 9th condition had been complied with. But in aid of the testimony of this witness the plaintiff relies upon that of Mr. Lavender. The conversation of the president of the company with this witness is supposed to be a tacit admission, that there was no objection taken to any defect in the preliminary proof furnished to the company, through the agency of Hammond. Let us see with what propriety such a supposition is entertained. The witness had called to know why the loss had not been paid, stating at the time if there was any deficiency in the proof he would try to supply it. The person, representing himself as president of the company, said they had sent an agent to Winchester, and from his information they did not believe there could have been so much stock in a little room 10 by 12 feet. The witness denied the correctness of the information given by the agent, and then enquired what further proof was wanted? The president replied “tire policy will show that;” or “it is laid — 16 — down in the policy.” The witness asked for a blank policy, but none was furnished, the president stating they had several forms of policy, and he did not know which one was used in this case. Thus it will be seen, that after speaking of the difference of opinion in regard to the size of the room and the quantity of goods it contained, Mr. Lavender wished to know what further proof was required, and he was answered, by being told the policy will show that, or it is laid down in the policy. The enquiry was not whether any further proof was required, but what further proof? and the answer being as already stated, to such a question, so far from being a tacit admission, that there was no objection taken to any defect in the preliminary proof, it was in truth just the reverse, and amounted to an assertion that further preliminary proof was necessary; for if none was required the policy could not possibly show what further proof was required; and if it could show that further preliminary proof was necessary, then the conversation was not a tacit admission of there being no objection to any deficiency in the proof. The following notice to the defendant was served upon its attorney: "Take notice, that on the trial of the above cause you are required and notified to produce the written notice of loss by fire, sent to you by the above plaintiff, and left with you in Philadelphia shortly after said fire, as also the account of the particulars of the plaintiff’s loss by said fire, accompanied and verified by his affidavit, and the certificate of a magistrate or notary public, certifying his opinion of the amount of said loss by fire, and that the same was occasioned without fraud or evil practice, which said last two papers were also delivered to your company, shortly after said fire, and before this suit.” Because the defendant neither produced the papers mentioned in this notice or gave any excuse or reason for not producing them, the plaintiff insists that such conduct on the part of the defendant, in connection with the other proof in the cause, authorized the juiy to presume that the papers contained the necessary preliminary proof. But the position here assumed is not sustained by the authorities. In such a case as this the non-production of the papers has — 17 — no other legal effect than to allow the opposite party to prove their contents. The refusal to produce does not authorise any inference against the party refusing. Cooper vs. Gibson, 3 Camp. Rep., 363. Lawson & another, Assignees of Shiffner, vs. Sherwood, 1 Stark. Rep., 314, in 2 Eng. Com. Law. Rep., 405. 1 Greenlf. on Ev., secs. 37, 560. Evans’ Pr., 293. Roscoe on Ev., 6. The plaintiff’s attomejq however, seems to consider his view of this question fully sustained by the case of Clifton vs. The United States, 4 How. Rep., 246. But the unfavorable inference there allowed against the parly for not producing the papers was under very different circumstances from the present. There it was contended on the part of the United States, that the goods in question had been forfeited by the claimant in consequence of his having fraudulently imported them. And the court below, under the 71st section of the act of 1799, (as the Supreme Court say they had a right to do,) “ had pronounced the proof sufficient to establish the offence, unless explained or rebutted by opposing evidence.” The counsel for the government, with a view of further strengthening their cause, and in pursuance of previous notice for that purpose, called upon the claimant for the production of his books and papers having relation to the importation of the goods. But neither the books or papers were produced, or any account given for the non-production. And on page 246 it is said: " Probable cause for the prosecution having been thus sufficiently established, the claimant went into his defence, and instead of furnishing evidence of the prices actually paid by him to the houses abroad from whom the goods were purchased, as he might have done, either by executing a commission to take their testimony, or by persons concerned in making the purchases, or by the production of the books of account that had been called for, as the call afforded him an opportunity to put them in evidence, he placed the defence altogether upon the judgment and opinions of merchants and other persons acquainted with this description of goods, as to the value and cost of the article in the home market, tending — 18 — thereby to confirm and support the correctness of the valuations as fixed in the invoices.” In the instructions given below it was stated: "That the claimant knew from whom he had bought the goods, and what was their actual cost, and yet had not produced the testimony, or accounted for its absence; that to withhold testimony which it was in the power of the party to produce, in order to rebut a charge against him, where it is not supplied hy other equivalent testimony, might be as fatal as positive testimony in support or confirmation of the charge. And that if the claimant had -withheld testimony of his accounts and transactions with these parties, (meaning the foreign houses from whom he had purchased the goods,) the jury were at liberty to presume that, if produced, they would have operated unfavorably to his case.” It is evident that the Supreme Court affirmed these instructions, because they were given at a stage of the case when probable cause for the prosecution had been established, and the onus of exonerating himself from the charge by proof was therefore cast on him. And a very serious charge it was, involving in its result not only the loss of considerable property, but loss of character also, being accused of violating the revenue laws of 'the country, by means of frauds and perjuries. On page 247 the court use this strong language: “ Under these circumstances the claimant was called upon by the strongest considerations, personal and legal, if innocent, to bring to the support of his defence the very best evidence that was in his possession, or under his control. This evidence was certainly within his reach, and probably in his counting-room, namely, the proof of the actual cost of the goods at the place of exportation. He not only neglected to furnish it, and contented himself with the weaker evidence, but even refused to furnish it on the call of the government, leaving, therefore, the obvious presumption to be turned against him, that the highest and best evidence going to the reality and truth of the transaction would not be favorable to the defence.” Now in the case before us there was no obligation on the defendant to show any defect in the preliminary proof, until — 19 — the plaintiff had first made out o, prima facie case of compliance with the requirements of the policy on that subject, which we think has not been done. The decision, therefore, in Clifton vs. The United States, cannot with propriety be applied to the present question. In truth that decision only recognizes the principle, that when a party under an obligation to Stistain his defence by proof, has in his possession important evidence on the subject and fails to produce it, but attempts to establish his defence by evidence of inferior character, it authorises an inference that he does not furnish the best, because it would injure, instead of benefitting, his cause. And we see no reason for doubting the correctness of the position, already stated upon the authorities referred to, that the present failure to produce the papers under the notice only allowed the plaintiff the right to prove their contents. After a careful Consideration of all the circumstances, we are brought to the conclusion that the first proposition contained in the defendant’s second prayer is right; and that the court ought to have instructed the jury there was no evidence pi the cause that such preliminary proof as the 9th condition of the policy required, had been furnished by the plaintiff before the institution of the suit. The prayer also contains the proposition, that there was no evidence that the preliminary proof of loss was waived by the defendant, which, in our opinion, is also correct. The conversation between Mr. Lavender and the president is the proof which is relied upon to establish a waiver. But we suppose what has been said in reference to that conversa-* tion is sufficient to show', that instead of considering it as any proof of an implied waiver, it is a negation of any such implication. The counsel of the plaintiff, however, says the court were right in refusing the prayer, because, whether there was a waiver or not, was a question for the jury, and not for the court. In Edwards vs. The Baltimore Fire Insurance Co., the plaintiff prayed the court to instruct the jury, “that if they believed the facts set out in the foregoing statement, the de — 20 — fendants have waived the adduction, by the plaintiff, of the preliminary proofs required by the conditions annexed to said policy of insurance, and that such waiver dispenses the plaintiff from now offering evidence of his having furnished the same. ” Which prayer the court refused, and the decision was affirmed. 3 Gill, 185. Now if the doctrine contended for by the counsel for the present plaintiff is correct, with reference to the circumstances of this case, it is reasonable to presume the late Court of Appeals would have placed their affirmance of the decision just referred to, upon the ground that the prayer presented a question to the court, which was exclusively for the consideration of the jury; but they give not the least intimation of their entertaining such an opinion. On the contrary the court enter into an argument to show that if the letter, supposed to create the waiver, could be so construed, it could be of no avail to the plaintiff, because at the date of the letter it was too late to supply any defect in the preliminary proof. And then, on page 187, they decide the letter not to be a waiver, without intimating a doubt of their authority to treat the question as one of law. Where all the facts and circumstances relating to the subject are admitted, in our opinion a party has the right to ask the court to inform the jury whether the evidence is sufficient to establish a waiver. Here there is no conflict of testimony, the proof being all on one side; and the prayer is such that it necessarily concedes the truth of all the plaintiff’s evidence, and all legitimate inferences which may be drawn from it. That such is the necessary concession of the prayer, may be seen by referring to McElderry vs. Flannagan, 1 H. & G., 320, where it is said: “Before the court could legally give the instruction prayed for by the appellee, they must admit the truth of the testimony offered by the appellants, and of the testimony given by the appellee, which may operate in the appellants’ favor, and the existence of all material facts reasonably deducible therefrom, even though contradicted in every particular by the testimony on the part of the appellee.” See also Cole vs. Hebb, 7 G. & J., 26, and Guy vs. Tams, 6 Gill, 86. — 21 — In the absence of evidence to show that such preliminary proof as the policy made necessary had been furnished, and no waiver of that proof having been established, the plaintiff, of course, had no right of action, and therefore the second prayer should have been granted. From the views already expressed it is evidently proper, in our opinion, that the decision below should be reversed, because the defendant’s fourth and sixth prayers were refused. Having thus settled the important questions involved in this controversy, we suppose it unnecessary to express any opinion in regard to the other matters referred to in the argument. Judgment reversed and procedendo ordered.