McCall v. Merchants' Insurance

The opinion of the Court was delivered by Bermudez, C. J. On the 14th of April, 1873, the defendant issued to the plaintiff, in his official capacity, on payment of the premium, a policy of insurance for $6300 on buildings belonging to the estate, which he was administering. On the 25th of May following, a fire broke out in. the buildings, which resulted in a total destruction and loss. On the 21st of May following (1874) nearly a year after the occurrence, the plaintiff, alleging a state of facts disclosing a right of- action, ■sued the company for the amount of the insurance. [144] The defense is the general issue; the discharge of the company by the failure of the plaintiff to give the notice and furnish the proof of loss required by the terms of the policy; deception on the part of plaintiff in this, that only one half of the property insured belonged to the succession of J. O. McCall, and the limit, in any event, of the liability of the company to that half. The reply is, that the plaintiff was prevented by the contributory acts of the defendant from gi ving the notice and proving the loss seasonably; that the company had sufficient knowledge; that the policy covered, under the verbal' understanding at the time, and without it, under the law, the interest of the successions of both, husband and wife, in the property insured. There was j udgment for the.plaintiff, and the defendant has appealed. The policy contains the following provision, which forms an essential condition of the contract: “ Persons sustaining loss or damage by fire shall forthwith give notice thereof in writing to the company.” The meaning and purport of the word “ forthwith ” has often been the subject of judicial interpretation. Courts have considered that it contemplated reasonable delay, but that, at times, under certain circumstances beyond the control of the insured, excuses were admissible to justify its omission. 8 R. 446; Woods on Ins. 411 et seq.; May on Ins. 565; Flanders on Ins. 512. The death of the assured, his non-residence, his absence, his ignorance of the fact, his confinement by an injury, his insanity, the refusal of the insurer to surrender papers, have been accepted as sufficient justifications for delays of notice and preliminary proof. 74 Penn. St. 17; 17 Iowa, 176; 3 Bush, Ky., 33; 31 Wis. 161; 47 Mo. 54; 11 Mo. 291; 12 Wallace, 433; 9 Wend. 163. Due diligence is always required, under the circumstances of each case. Wood, 696. The excuse offered by the plaintiff is, that he was prevented by the act of the defendant from'giving the notice and furnishing the proof. The evidence shows that the plaintiff was, on a charge of arson, arrested, tried and acquitted. The plaintiff says that he was imprisoned under the charge, which was a capital.offense, and claims that the condition of his mind was such that he could not give the notice sooner than he did, i. e. seven months after the occurrence, and that he was prosecuted at the instance of the defendant. We find no evidence that the plaintiff was imprisoned; that his mind was deranged; andnone that the company caused the prosecution. If it be true that the. plaintiff remained in duress during the seven months which intervened between the fire and the notice, which he [145] gave after his acquittal, that circumstance could not of itself justify the absence of a proper and seasonable notice. The first thought that should have come to the mind of the plaintiff after the excitement and emotions of the moment had subsided, should have been, in vindication of his innocence of the offence charged, to have formally asserted that sentiment by notifying the company of the fire, and by signifying his intention to hold it responsible, the more so, as he occupied a fiduciary capacity, and, no doubt, was in frequent consultation with counsel. Under the requirement that notice shall forthwith be given, it has been held that a delay of six, eleven, eighteen, twenty days, a month, five weeks, four months, was fatal. 12 Wendell, 452; 7 Jones Law; 44 Ind. 460; 6 Blatch. 249; 20 Barb. 468; 5 Casey, 198; 3 Gill, Md., 176; 11 Mo. 278; 18 Ill. 553; Wood on Ins. 696, 701; Flanders on Fire Ins. 512. In this case the fire occurred on the 25th of May, 1873, and the notice was given in the latter part of December following, more than seven months after the occurrence. Knowledge of the accident by the company does not dispense with the notice required by the contract from the insured, and which should be in writing. Wood, 414, 699. There is nothing to show that the company authorized, still less instigated, the prosecution. The petition is reticent on the subject of excuse. If no averment was necessary it certainly was essential to prove not only the fact but to establish also that the company designed by such prosecution to intimidate the insured, so as to frighten him out of all intention of claiming and recovering the amount of the insurance. The burden of proving seasonable and proper notice was upon the plaintiff. He has not done so. Griswold Fire Underwriters Test Book, pp. 524, 594; 12 Wend. 452; Wood, 701; 13 Maine, 265; 26 O. St. 74; 2 Woods, C. C. 272. We do not find that the company has contributed to the delay set up in exoneration by the plaintiff. It is not probable that the company ever could have conceived that by prosecuting and intimidating the plaintiff a surrender of rights to recover on the loss could have been accomplished. The plaintiff was acting in a fiduciary capacity as administrator of a succession, and could not, by any act of his, have legally prejudiced the interest which he represented officially. We think the plaintiff cannot recover. Wood, 413, 414. It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reversed, and that there be judgment in favor of defendant rejecting plaintiff’s demand with costs.