Huckins v. Peoples' Mutual Fire Ins.

Eastman, J. Upon the first three points raised at the trial, the ruling was correct. A witness may refer to a written instrument or memorandum, or to entries in a book, for the purpose of refreshing his recollection or assisting his [247] memory, whether made by himself or others, provided that, after inspecting them, he can testify to the facts from his recollection. Howland v. The Sheriff of Queens County, 5 Sandf. 219; Lawrence v. Baker, 5 Wend. 301; Welcome v. Batchelder, 10 Shep. 85; Redden v. Spruance, 4 Harr. 47; 1 Greenl. Ev. § 436, and authorities cited. And it is within the discretion of the court, at the trial, to permit leading questions to be put to a witness, or to have suggested to him names, dates and items which cannot be significantly pointed to by a general interrogatory, if the witness has exhausted his memory, and the purposes of justice require such a course to be taken. And this rule must necessarily be regulated by the circumstances of each case. Moody v. Rowell, 17 Pick. 498; Acerro & a. v. Petroni, 1 Stark. Rep. 100; 1 Greenl. Ev. § 435. The testimony of the witness as to the purchasing of the goods, was not secondary. It did not disclose evidence of a higher degree. It might also be as satisfactory as duplicate bills made out months after the purchases. Of that the jury would judge. If competent, as it was, it was admissible. The plaintiff' was not obliged to produce his ledger, and could attach to its production the condition which he did. If the defendants saw fit to examine it with that condition they might, or they could decline and produce secondary evidence of its contents. And in regard to the next point, we are of opinion that the instructions asked for were properly declined. Carelessness or negligence, as such, cannot be held to be a defence to an action upon a policy of insurance. In the absence of fraud, it is the proximate cause of the loss that is to be considered. Williams v. The New England Mu. Fire Ins. Co., 31 Maine Rep. 219 ; Gates v. Madison County Ins. Co., 1 Selden’s (N. Y.) Rep. 469. If, however, the acts done or neglected to be done are of a character which tend to show design or fraud, they would be admissible. And in Chan [248] dler v. The Worcester Mutual Fire Ins. Co., 3 Cush. 328, it was held that a party may be guilty of such gross misconduct, not amounting to a fraudulent intent to burn the buildings, as to preclude him from recovering for a loss of the same by fire. In explanation of this decision the learned Chief Justice, Shaw, remarks: “ By an intent to burn the building we understand a purpose manifested and followed by some act done, tending to carry that purpose into effect, but not including a mere nonfeasance. Suppose the assured, in his own house, sees the burning coals in the fireplace roll down on to the wooden floor, and does not brush them up; this would be mere nonfeasance. It would not prove an intent to burn the building ; but it would show a culpable recklessness and indifference to the rights of others. Suppose the premises insured should take fire, and the flame begin to kindle in a small spot, which a cup of water would put out; and the assured has the water at hand but neglects to put it on. This is a mere nonfeasance ; yet no one would doubt that it is culpable negligence in violation of the maxim, Sic intere tuo ut alienum non laedas.” The cases put by the distinguished chief justice would, according to the civil law, be of themselves proof of fraud, or equivalent to fraudulent purpose or design. They are indeed supposable, but from such facts a jury would be very likely'to find intentional fraud. Although such negligence consists in doing nothing, and may therefore be a nonfeasance, yet'the doing of nothing, when the slightest care or attention would prevent a great injury, manifests a willingness, differing little in character from a fraudulent and criminal purpose to commit such injury. This case does not weaken the position that negligence or carelessness is not a defence to an action upon a policy of insurance ; nor is it an authority for the defendants, for they proposed to show no such gross negligence as that spoken of by the chief justice. But, the instructions next asked for should have been [249] given. The insurance was on English, American and West India goods, and upon no others. The defendants asked the court to instruct the jury that if they were satisfied that the tea or the nutmegs were not either English, American or West India goods, then the plaintiff could not recover for those articles. This request appears proper; and, we think, should have been complied with. The plaintiff cannot recover for goods differing in kind from those insured, and it ought to have been left to the jury to say, from the evidence, whether the articles specified were of the kind insured or not. We think, also, that the instructions given upon the next point might, perhaps, mislead the jury. The fourteenth article of the by-laws is as follows: “ In case of loss by fire, the company will in no ease pay more than two-thirds on personal property, and three-fourths on real estate, of the actual cash value of the property at risk at the time of the loss. Partial losses will be paid in full, anything in the bylaws to the contrary notwithstanding.” Had the fire taken place on the night after the policy was issued, the company would not have been controlled by the valuation stated in the application for insurance, but might have shown its true value when the fire occurred. The application is not made under oath, and where it is for insurance on a stock of goods, as in this case, exactness cannot be obtained without taking an inventory, which is probably never done in making the application. The rule governing this question was recently considered by the court, in Atwood v. The Union Mutual Fire Insurance Company, 8 Foster’s Rep. 234. The loss is to be determined by the value of the property at the time of the fire, independent of its value at the time of the insurance. See, also, Post v. Hampshire Mut. Fire Ins. Co. 12 Met. 555. The remaining instructions were sufficiently favorable to the defendants. They were, as we understand them, to this effect: that the plaintiff could recover the full amount of [250] his insurance viz. $1500, provided he could show that, at the time of the fire, he had on hand goods in his store, of the kind insured, of the value of. $2250, and that $1500 worth were destroyed by the fire. The charter, in the fourth section, provides that the directors shall determine the sum to be insured on every building, not exceeding three-fourths of its value. It is silent as to the amount to be insured on personal property. It, however, provides for the making and putting into execution such by-laws, ordinances and resolutions, not repugnant to the laws of the State, as may be necessary for the regulation, management and government of their affairs. And the fourteenth by-law is as above quoted. The policy contains this clause: “ provided, always, that this company will not be liable for more than three-fourths of the actual cash value of the property destroyed by fire, and covered by this policy.” Taking the charter, by-law and policy together, we think that the least that could be recovered in case of a total loss would be two-thirds of the amount on hand, not exceeding the sum insured. The memorandum at the top of the application that not more than two-thirds of the cash value of buildings, and half the value of personal property will be insured by the company, is not embraced within the application, as signed by the plaintiff. But even if it were, it would not control the charter and by-law and the policy issued by the company. The defendants agreed to insure the plaintiff to the amount of $1500, with an application before them, asking insurance on that sum, and valuing the property at $2000, and they issued their policy accordingly. This sum the court instructed the jury should be paid, provided it had been lost, and provided it did not at the time of the fire, exceed two-thirds of the amount on hand. And we think that the company had no ground to complain of this instruction. But for error in the instructions given on the fifth point the verdict must be set aside, and a New trial granted.