Caledonian Insurance v. Traub

Page, J., delivered the opinion of the Court. This action was brought by Julius Traub & Bro., against the Caledonian Insurance Company of Scotland, to recover upon a policy of insurance issued by the latter for the loss by fire of certain property mentioned therein. The declaration alleges that on the 20th day of March, 1893, by a policy of insurance, in consideration of ten dollars, the defendant company agreed with the plaintiffs to insure to the extent of $2,000 against loss or damage by fire, their stock of goods contained in the building mentioned, and to indemnify them for all such loss as they should suffer by fire, not exceeding the said sum, during the time from the “20th of March, 1893, to 20th of March, 1894,” “the amount of said loss or damage to be paid in sixty days after due notice and proof of loss of the same; ” that whilst the policy was in force and the plaintiffs were “ interested ” in the property, it was consumed, whereby the plaintiffs sustained a loss, and that forthwith they gave notice thereof to the defendant, and furnished to the defendant a full and complete account of their said loss, and were ready and willing to furnish the defendant such other documents and vouchers and proof of their loss as the defendant’s officers or agents should reasonably demand, and that all times have elapsed and all things and conditions have happened and been performed to entitle the plaintiffs to said payment, and to have and maintain this action. The pleas were: 1st, never promised as alleged; 2nd, never covenanted and agreed, &c.; 3rd and 4th, that the plaintiffs “did not, within sixty days, render a statement to the defendant stating the knowledge and belief of the said plaintiffs as to the time and origin of the said fire, and the — 220 — interest of the said plaintiffs and all others in the property, and all other insurance, whether valid or not, covering any of the said property.” Replication to the 3rd and 4th pleas, waiver of the condition of the policy set out in the pleas, and joinder of issue as to the other pleas. At the trial the plaintiffs offered to read in evidence the policy of insurance sued on, but the defendant objected, and the action of the Court in overruling the objection constitutes the defendant’s first exception. It may be remarked, there is no question before us as to the sufficiency of the declaration. That could have been raised by demurrer, a form of pleading to which the appellant did not choose to resort. But thz. probata must correspond with the allegata, and therefore unless the contract, to the admission of which as evidence objection is made, has been incorrectly-set out in the narr. it ought to have been admitted Seigman v. Hoffacker, 57 Md. 326. By the Code, sec. 3 of Art. 75, no particular form of words are -required, nor is it necessary to set out more of the alleged contract than pertains to the obligation, the breach of which is complained of, and if the alternative qualifies the obligátion, then the whole should be set out according to the legal effect. Hoke v. Wood, 26 Md. 460. We do not find there is a variation between the contract alleged in the narr. and the policy which the Court permitted to be read by the jury. There is no variation as to the parties, the date, the obligation to pay, or the time at which the payment became, due, and the general statement, “ that all times have elapsed and all things and conditions have happened and been performed to entitle the plaintiff to-said payment and to have and maintain this action,” applies to the several conditions in the policy. Whether the language employed by the pleader, in the clause just quoted, was so general as to be- bad on demurrer, we are not called upon to determine. There was no error, therefore, in allow-the policy to go to the jury. After the policy and other evidence touching the fire and — 221 — the plaintiffs’ loss had gone to the jury, a witness for the plaintiff having stated on his examination in chief, that the insurance companies and the plaintiff had agreed to enter into an appraisement of the loss, the agreement in writing to submit to an appraisement and the award of the appraisers were offered to the witness, on his cross-examination, “ for identification, as the paper signed by the plaintiff and on behalf of the companies and award.” On objection by the plaintiffs’ counsel, the Court refused to allow the papers to be so identified, and this constitutes- the defendant’s second bill of exceptions. This action of the Court was clearly wrong. The policy provided for the submission to appraisers of the matter of loss, in case of disagreement between the insured and the company, and if the appraisers properly performed their duties, their award was binding upon both parties. The witness had stated that the plaintiff and the defendants had agreed in writing to enter into an appraisement, and upon cross-examination the agreement to submit and the award were offered to him to be identified. Identification is the first step towards offering a paper to a jury. It must be first identified before it can be read. The refusal of the Court, therefore, to allow its identification under the circumstances stated in the bill of exceptions, was equivalent to a refusal to allow it to go in at all as evidence. The counsel for the defendants, it is fair to presume, so understood the ruling, for he seems to have made no further effort to get it before the jury. It is contended, however, that no injury was done to the defendant by this ruling, because at a later stage of the trial the paper was fully identified, and therefore there is no reversible error. But under all the circumstances, we are unable to take this view. The refusal to permit this witness to identify was made when the subject of the amount of loss was being considered by the witness; he had stated that the companies had offered to pay $800, and that they, with the plaintiffs, had agreed to an appraisal. The counsel, as we have said, presumably was led thereby to regard it as a re — 222 — jection of the paper as evidence, and if this was so, and by reason thereof the paper was not offered in evidence, the defendants were deprived of testimony important to be considered by the jury in estimating damages. The third bill of exceptions brings before us for review, the several instructions granted and rejected by the Court; The appellees’ only prayer was granted, and nine, asked for by the appellants, were rejected. The prayer of the appellees was, that if the jury find that the plaintiffs were insured by the defendants in the policy 'of insurance offered in evidence, and suffered a loss by fire, and that “ the defendant company was notified of the said loss, as admitted by the defendant company, and shall further find that the adjuster of said defendant company, in response to the said notice, visited the place of fire, and shall further find that the said adjuster thereupon examined into the circumstances of said loss, and shall further find that he thereupon offered to pay to said plaintiffs the sum of money mentioned in evidence, and shall further find that the defendant company, or its agent, took the property of the plaintiffs into their possession and retained the same for the period of nineteen days ; and shall find that subsequently thereto the defendant company offered to pay plaintiffs the amount of an award, and denied its liability on other grounds than the’absence of proof of loss, then the jury are at liberty to find from the evidence that the defendant company waived the necessity for all preliminary proofs of loss; and if they find such waiver, then their verdict must be for the plaintiffs.” The bill of exceptions does not state a defect of proof to be the ground of objection to the prayer as required when such is the case by sec. xo of Article 5, of the Code, and we are now only called upon to determine whether the conclusion of law therein stated is correctly drawn from the facts set forth. One of the issues before the jury was waiver vel non, and the purpose of the prayer was to instruct them what facts were needed to enable them to determine that in — 223 — favor of the plaintiffs. It is well settled that questions of waiver of the preliminary proofs required by a policy of insurance, when they depend upon mere parol evidence of facts and circumstances, are for the jury, under the instruction of the Court. Citizens' Fire Ins. Co. v. Doll, 35 Md. 102. And it is equally well settled, that when an insurer does that which is inconsistent with its intention to insist upon a strict compliance with the conditions precedent of the contract, it is treated as having waived their performance. 1 Wood on Fire Insurance, sec. 525, et seq. This prayer authorized the jury to find that the defendant waived the necessity for the preliminary proofs required by the policy, if they believed that the defendant was notified of the loss, and that its agents visited the premises, took possession of the property and retained it for nineteen days, and that subsequently thereto offered to pay the plaintiffs the amount of an award, and denied its liability on other grounds than the absence of proof of loss. That these facts, if proven to the satisfaction of the jury, would in law constitute a waiver, has been substantially decided by this Court. In Fireman's Ins. Co. v. Floss & Co., 67 Md. 417, it was said, “the failure to make known the objection, notwithstanding the lapse of time; the fact that the defendants had themselves, with others, instituted an investigation into the circumstances and extent of the loss, and placing the refusal to pay upon other and distinct grounds than the want of sufficient preliminary proofs, .furnish the amplest ground for holding all objections to such proof to have been waived by the defendants.” The question of waiver was fairly put to the jury by this prayer. We are of the opinion that all the defendant’s prayers were properly rejected. The first, second and fifth ignored all the evidence tending to prove the facts set out in the plaintiff’s prayer. . The defendant had the right to ask an instruction upon segregated portions of the evidence, but the conclusions thus arrived at must be consistent with the truth of all other facts offered in proof. Winner v. Penniman, 35 Md. 163. — 224 — (Decided December 18th, 1894.) If the jury found such facts as would constitute a waiver in law under the plaintiffs’ prayer, the propositions contained in these prayers were moot questions, having no relevancy to the issues before them. The seventh and eighth prayers submit a question of law to the. jury. Waiver in this case, depending as it did upon parol evidence of facts and circumstances, was a matter to be determined by the jury under the instructions of the Court. There was also error in the eighth prayer, in instructing the .jury that there was no evidence that the preliminary proof of loss was waived by the defendant. The third prayer ought not to have been granted, because of the agreement of the parties, that if the jury found for the plaintiff they should assess “ the whole damages and loss sustained by the plaintiffs.” If the jury found the contract of insurance, the waiver of the preliminary proof of loss, and the loss of the goods by fire, the right of action had accrued and no demand was necessary. Allegre v. The Md. Ins. Co., 6 H. & J. 408; and for this reason the fourth prayer was properly rejected. , • The ninth prayer is defective in that whatever may be the law in respect to the nature of the arbitration clause contained in the policy as a condition precedent to the plaintiffs’ right of recovery, the proof is clear there was an arbitration and an appraisal of the loss by arbitrators, though neither counsel offered any of the papers showing the results of it to the jury. The prayer therefore presented an hypothesis of fact to the jury for which no support could be found in the evidence. It was therefore properly rejected. There being error in the ruling contained in the defendant’s second exception, the judgment must be reversed and a new trial awarded. Judgment reversed and new trial awarded.