Noonan v. Hartford Fire Insurance

Leonard, Judge, delivered the opinion of the court. It was a condition in this policy that the insured, immediately after the happening of a loss, should give notice of it, and as soon thereafter as possible deliver in a particular account of the loss, verified by the party’s affidavit, and “ procure a certificate under the hand of a magistrate or notary public most contiguous to the place of the fire, and not concerned in the loss, as creditor or otherwise, or related to the insured, that he is acquainted with the character and circumstances of the insured, and has made diligent inquiry into the facts set forth in the statement; and knows or verily believes that the party [87] really and by misfortune, and without fraud or evil practico, has sustained, by such fire, loss to the amount therein mentioned.” This stipulation, for the production of a certificate of this character, seems to be an ancient and very common provision in a fire policy, not intended to conclude the underwriters as to the facts required to be certified to, the loss, and the amount of it, but stipulated for, on their part, as an additional protection against the fraud of the insured. As it is a provision, however, for their own security, .they may, of course, waive it, if they think proper, or their conduct towards the insured, in relation to it, may be such that it would be inequitable for them afterwards to set up the want of it as a ground of defence to an action, and in such cases, they are estopped, as a sheer matter of law, from doing so, upon the principle common to all equitable estoppels, that the words or acts of a party, which cannot afterwards be contradicted, without fraud and injury to those whose conduct has been influenced thereby, shall conclude the party, without any reference-to the real truth of the matter. In the first instance., the question of waiver is one for the jury, and in the other, a question of law for the court. In the present case, the court, in effect, directed the jury that the facts suggested in the tenth instruction amounted, in law, to a waiver of the required certificate, (for it seems to have been assumed that notary Pritchartt’s certificate was not in conformity with the condition, and that both of the justices, being more remote from the fire, were not authorized to act,) and whether they do so or not, is the question presented for our judgment. These facts are, substantially, that the insured gave due notice of the loss, and within a reasonable time afterwards, a particular account of it, verified by his affidavit, accompanied by the certificates of Pritchartt, Allen and Vogel, read in evidence, and abatement and appraisement of the goods saved from the fire, declaring, at the time, that this completed his preliminary proof, and was intended as a compliance with the conditions of the policy ; that the defendant made no objection [88] to the proof upon the score of its non-conformity with the condition, but went into an investigation of the amount of the loss, and after examining the defendant-and his books-, on the 8th of June, stated to the plaintiff the amount of the loss, as thus ascertained, and offered to pay that sum on account of it. The certificate of Pritchartt, the nearest officer, as read in evidence, was given on the 28th of February, immediately after the fire, and was to the effect that the fire occurred in the plaintiff’s house, and was the work of an incendiary, but that the answer he received, as to the character and circumstances of the plaintiff, were such, that he could not arrive at a conclusion as to the fairness or amount of the loss ; and the other two certificates, afterwards given by the justices of the peace, were in conformity with the stipulation. The plaintiff refused to receive the amount offered on the 8th of Juno, and afterwards, other communications passed between the parties in writing, in relation to the amount to be paid, which were finally closed by a letter from the defendant, of the 18th June, declining to make any further offer, and stating that, if the one already made was not accepted, they should expect a strict compliance with the conditions of the policy, and require the production of a' certificate from the nearest notary. This was the first time any objection was taken to the certificates. Here, the correspondence between the parties closed, and this suit was afterwards commenced. The case of Worsly v. Wood, decided in the King’s Bench, (in 6 Term Rep. 710,) was a suit by the insured upon a fire policy, containing a stipulation to the effect that the insured, upon the happening of a loss, should procure “ a certificate of the minister, churchwardens and some reputable householders of the parish, importing that they knew the character, &c., of the insured, and believed that he really sustained the loss, and without fraud.” The controversy was as to the extent of the loss, and the minister and churchwardens refusing to certify to the full amount claimed by the insured, he procured the certificates of [89] other reputable householders in the parish, and the question was, whether the procuring of a certificate was a condition precedent to the plaintiff’s recovery, and if it were, whether the certificates of the other persons were a sufficient compliance with it, and the court decided, after a divided opinion in the Common Pleas, in the same case, (2 Hen. Black. 574,) that it was a condition precedent, and that the certificates .of other persons was not a compliance with it. This was the first decision upon the question, and it has been generally followed in the United States. (Oldman v. Bewicke, 2 Hen. Black. 277, note a. Angel on Insurance, sec. 226 and cases.) If the nearest officer were disqualified from acting, by interest or otherwise, or refused to act at all in the matter, the next nearest officer, it would seem, might be considered as embraced within the stipulation; but when the person indicated is qualified, and does act, and his certificate is almost the reverse of what is required, it would seem to be beyond our reach to help the insured, either by disregarding the stipulation or substituting a different one in its stead. Whether the defendant had waived the production of a proper certificate, was not left to the jury as a question of fact, but was thrown entirely out of the case, and the jury were directed that, if they found the facts detailed in the tenth instruction, they must find for the plaintiff, without any reference to the intention of the defendant or the other circumstances of the transaction ; or, in other words, that these facts estopped the defendant from setting up the want of a proper certificate as a ground of defence. We cannot concur in this direction. We are not required, by the authority of any adjudicated case that we are aware of, which is obligatory upon us, to declare that such is the legal result of these facts, and we do not think they ought to have that effect. The underwriters had a right to protect themselves against fraud by this provision, which they put into the contract for that- purpose, and their engagement to the insured did not subject them to any obligation to pay him until he procured from the person indicated in the pol [90] icy, the stipulated certificate. They might, it is true, have waived the proof, absolutely or temporarily; but we cannot hold that their failure to make the objection at the beginning, and going into an examination of the extent of the loss-, and offering to pay the amount thus ascertained, was an absolute waiver of the production of a proper certificate, when they called for it, not only before the suit was brought, but during the treaty for the adjustment, or at least at the close of it. They might, it is true, have declined entering upon any investigation, as to the loss, until the stipulated certificate was produced, and their going, into the inquiry, without making any objection to the certificates presented, especially when they were informed it was all the preliminary proof the .party^proposed giving, would afford a natural inference that they waived, temporarily at least, the production of any other certificate, and were willing to pay, if otherwise satisfied of the fairness of the loss, and the-extent of it. But we do not think this conduct, on the part of the underwriters, ought to conclude them, as a matter of law, unless the insured were thereby deprived of an opportunity of procuring the necessary certificate. The natural inference to be derived from the conduct would seem to be, that they waived, for the present, any objection to the certificate; and if they had not before or at the close of the treaty for the adjustment, made the objection, but had waited till the suit was brought, they would, probably, have been es-topped from relying upon it, and this, it is believed, is as far as the cases have yet gone upon this subject. Whether the circumstances of the ease will turn out to be such as to justify the inference that the defendants did, in fact, waive the production of any other certificate, is a question for a jury, and not for us. All we determine is, that the facts indicated in the instruction do not, under the circumstances of the case, conclude the defendants, as a matter of law, leaving the question of waiver to be determined by a jury as a matter of fact, upon proper evidence to be submitted to them. The result is, the judgment must be reversed, and the cause remanded; and the other judges concurring, it is so ordered.