Imperial Fire Insurance v. Shimer

Mr. Justice Dickey delivered the opinion of the Court: We find nothing in this record requiring the reversal of the judgment. An elaborate argument is made to show that the verdict is against the weight of the evidence. The proofs are very voluminous, but we have read them carefully and think the same sufficient to sustain the verdict. Appellant was brought into court by proceedings of garnishment by creditors of Gunning, on the allegation that the company was liable to Gunning upon a policy of insurance. Appellant answered denying the liability. A jury trial was had on the issue thus formed. It is contended that all these proceedings at the trial should be disregarded and set aside, because no replication to the answer was filed. Whether such a replication be necessary or not to make a case for a jury, we need not decide. Both parties treated the issue as properly made, and proceeded with the trial to verdict without objection on this ground. Appellant after that surely can not be allowed to object on that ground. It is next objected that it was error to allow the affidavits made in proof of loss to go in evidence to the jury. We have heretofore decided this proof proper, as tending to show a compliance with the provisions of the policy by the assured. It is said, however, that the jury should have been told that this evidence was competent for that purpose only. Appellant can not complain that this was not done, unless he shows by the record that the court was called upon to thus advise the jury and refused so to do. This does not appear. As to the objections urged against the instructions given to the jury at the instance of plaintiff, we find in them no good reason for reversing the judgment. The latter clause of the first is not very perspicuous, but the meaning is plain, and the jury could not fail to understand that the fact that the property in question was used at the time of the fire in a manner and for a purpose variant from that stated by the insured in the application for the policy, would be no bar to the action, if the agent of the company, when receiving the application and granting the policy, had full knowledge of the manner and purposes for which the property was then used, and there had been no change in that respect in the mode and purposes of the use. The property was represented as to be used in the manufacture of wagons. The objection was that before and at the time of the fire it was being used not only for the manufacture of wagons, but for the manufacture of spokes not used in these wagons, but for the market, and the instruction is that this variance from the statement would not bar the action, if the agent was not deceived or misled, and had full knowledge of the character of the work going on, and no change had been made. This, we think, was right. Counsel for appellant has, in his argument, criticised in detail many of the instructions. We deem it unnecessary to follow him throughout the discussion, but simply say we have examined all of them and have considered the suggestions of counsel, and find no good reason for disturbing the judgment of the court below. Judgment affirmed.