Swan v. Liverpool, London & Globe Insurance

Chalmers, J., delivered the opinion of the court. After plaintiff had closed his testimony in the court below, -defendant, without introducing any of its own, sought and obtained from the court an instruction to the jury “ to find, as in the case of nonsuit, that plaintiff’s evidence did not conduce to prove any cause of action, and they ought to find for defendant, and that even if they found any fact for the plaintiff which his evidence conduced to prove, still there was no cause of action, and they ought to find for defendant.” ■ In obedience to this instruction, the jury, as in duty bound, returned a verdict for defendant, from which plaintiff appeals, assigning as the main ground of error the action of the court in granting the instruction quoted. That our courts possess the power to give such instructions was settled at an early day, in the case of Perry et al. v. Clark, 5 How., 500, and the language of the charge in question was copied from the opinion of Chief Justice Sharkey in that case. [708] The learned, chief justice, however, while vindicating the right of the court to grant such instructions, proceeds to saj: “ The evident tendency of all the cases is against the exercise of such a power as that claimed in the present instance, unless in cases where there can be no room for doubt, and this is the extent to which they go.” To this we yield our unqualified assent. It is a delicate power, and one which should be used with the greatest possible caution. If there be any room for doubt, such a charge ought not to be given. Such charges have been well likened to demurrers to evidence, as to which it is held that they should not be sustained if the evidence, taken as wholly true, proves or fairly tends to prove the case by any or all of the conclusions properly and legally deducible therefrom. Chewring v. Gatewood, 5 How., 552; Goodman v. Ford, 23 Miss., 592 ; M. & O. R. R. Co. v. McArthur, 42 ib., 180. We have ourselves declared, in reference to this class of instructions, that they are “ only proper where all the facts in evidence taken as absolutely true, and every just inference from them, fail to maintain the issue.” Whitney v. Cook (MSS). Tested by these rules, we think that the instructions in the case at bar were manifestly improper. The suit was upon a policy of insurance against fire, to recover the full amount upon a total loss. The supposed defects in plaintiff’s evidence are an alleged insufficiency in the proof as to plaintiff’s ownership of the property insured, and defects in the preliminary proof of loss filed with the underwriters, under the requirements of the policy, before suit brought. Plaintiff adduced no record evidence of his title to the premises, though several witnesses testified that, by general repute in the neighborhood, he was the owner of them, and was in possession, by an agent, at the time of their destruction, and the testimony of the agent was to the same effect. Moreover, the property was insured in plaintiff’s name, upon an application stating that he was the owner. Whatever may be [709] llie rule where the question of ownership is put in issue before the jury by the pleadings, it was only necessary, in order to render improper the giving of the instructions complained of in this case, that plaintiff’s testimony should tend to the establishment of his claim to ownership, and it is held that “the issuance of the policy in his name is prima facie an admission by the insurers of the title of the insured to the property insured.” Fowler v. N. Y. Ind. Ins. Co., 23 Barb., 150; Nichols v. Fayette Ins. Co., 1 Allen, 63. The objections urged against the preliminary proof of loss furnished by plaintiff before suit are stated to be of a twofold -character : 1st, that the same was made by an agent, instead of by the insured in person ; and, 2d, admitting that it was competent for an agent to make the proof, no sufficient evidence was adduced that the person acting as agent had been duly authorized thereunto by the insured. So far as proof of agency is concerned it is sufficient to say that the person assuming to act as agent for the owner, in this case, was the same who, in that capacity, had effected the insurance, paid the premium, received the policy, and in every manner been recognized by the underwriters. It is too late now for the latter to question his authority, or .to object to any defects in the preliminary proof of loss. They had been in possession of the document for many months before suit brought, and themselves produced it with their pleadings. It is not shown that they ever objected to its sufficiency or called upon plaintiff to amend it. It is well settled under such circumstances they are precluded from objecting on the trial to any formal defects in it. Fland. on Fire Ins., 543; Peacock v. N. Y. Life Ins. Co., 20 N. Y., 293; Ætna Fire Ins. Co. v. Tyler, 16 Wend., 385 ; O’Neil v. Buffalo Ins. Co., 3 N. Y., 123; Byrne v. Rising Sun Ins. Co., 20 Ind., 103 ; Herron v. Peoria Ins. Co., 38 Ill., 238 ; Great Western Ins. Co. v. Staden, 26 Ill., 365. One of the conditions indorsed upon the policy was, that in -case of loss the insured should “ forthwith give notice of such [710] loss, and shall within a reasonable time render such accurate and particular account of their loss or damage as the case will admit of, and shall verify the same by affidavit,” etc. This seems to contemplate an immediate notice of loss, and a subsequent detailed and accurate statement thereof in-full. The former is tecnnically known as “the notice of loss,” the latter as “the preliminary proof of loss.” The one was to-be given “ forthwith,” the other was to be furnished “ within a reasonable time.” The notice of loss seems to have been promptly furnished, and its receipt and sufficiencjr to have been acknowledged by the general agents of the company, but the preliminary proof of loss was not forwarded for more than six months after the destruction of the premises. This seems an unwarrantable delay, but may have been rendered reasonable by the circumstances of the case. What is and what is not reasonable time, in cases of this, sort, depends so much upon the facts of each case that we are unable to declare, as a matter of law, that the delay in this-instance does not fall within a proper restriction of the term. It is a mixed question of law and fact, to be submitted to the jury under proper instructions and supervisory control of the court. We have arrived at the conclusion that the court below erred in instructing the jury to find for the defendants. Plaintiff insists that, this being so, we should treat it as a demurrer to evidence, and, giving such judgment here as the court below ought to have given, we should enter up judgment here for plaintiff. This is an erroneous view of the attitude of the case. Whilst it is true that an instruction to the jury to find a particular verdict should never be given, except where it would be proper to sustain a demurrer to evidence, it by no-means follows that a judgment is to be entered as if that was the state of the pleadings. The proceedings are wholly different. [711] On a demurrer to evidence the court acts without the intervention of a jury, and awards judgment, final for plaintiff or defendant, accordingly as it' finds the demurrer well or ill taken. But in a case such as the one under consideration it is equally impossible for the court to render judgment without the interposition of a jury, whether the instruction is given or refused. If the instruction be granted, a jury must still come with their verdict to make it effectual. If, on the other hand, the instruction be refused, it will scarcely be contended that the court should enter judgment against the party propounding it. When, the instruction having been given and verdict rendered in accordance therewith in the lower court, the case comes here by appeal or writ of error, the question with us is simply one of error or no error in the granting of the instruction, and like judgment must follow upon the determination of that question as in other cases. Having found that the verdict in this case was produced by an improper instruction, our sole duty is to reverse and remand, which is accordingly done.