Boyle v. Hamburg-Bremen Fire Insurance

Construction of fire policy — Proof of loss — Collective items in inventory. Under a clause in a fire policy which requires the insured to make and present, with the proofs of loss, a complete inventory of damaged goods, stating the quantity and cost of each article and the amount claimed thereon, ‘an inventory, otherwise sufficiently specific, is not invalidated by the fact that it contains items of a collective character, such as a “ lot of goods in a show window,” “contents of a small show case,” “lot of shirt bosoms, handkerchiefs, fly netting,” etc. “ This stipulation is not to be construed most strictly against the insured. Its object is to secure a full statement of the loss, he (the plaintiff) claims, so that the company may have notice and necessary opportunity to test its correctness. Substantial performance is enough.” Per Mr. Justice Williams. Construction of policy — Ascertainment of loss — Appraisement. Where one clause in a fire policy provides that in case of loss an estimate shall be made by the insured and the company, and another clause provides that in case they differ the subject is to be referred to appraisers selected as therein provided, the remedies are successive, and neither party can insist upon the second who has not shown himself willing and ready to enter upon the first: Snodgrass v. Gavit, 28 Pa. 211, followed. Hence, where the defendant company, upon receiving plaintiffs’ proofs, without making any effort to come to an agreement with him as to the amount of his loss, gave notice that a difference had arisen, and demanded the appointment of appraisers in the first instance, Held, that the position was unwarranted, and the plaintiffs could at once resort to an action.

Appeal, No. 154, Jan. T., 1895, by defendant, from judgment of C. P. Lackawanna Co., April T., 1892, No. 519. Assumpsit on fire insurance policy for damage to personal property. Before Edwabds, J. The material facts in this case appear in the portion of the charge of the court which is quoted, and in the opinion of the Supreme Court. At the trial, E. F. Bojde, one of the plaintiffs, being called as a witness, counsel for plaintiff asked him: “Q. What damage did you sustain upon the dry goods, if any ?” By Judge Jessup : “ Counsel for the defendant objects to the question that if any article of dry goods was injured he is entitled to state what article it was, and what was the injury to that article, the contract of insurance requires that. And we object also to any evidence being given with reference to any loss by fire until the plaintiffs shall have shown that they are entitled by the terms of the contract to make any proof in a court of justice of the amount of loss or damage under the contract.” By the Court: “Your objection, Judge Jessup, is to*the order in which the counsel is trying the case. Of course, after lie proves what he proposes to prove now, if he fails to show that he has complied with the preliminary conditions in the contract, of course the case cannot go to the jury. I shall overrule your objection.” Exception noted for plaintiff, at whose request a bill is sealed. “ A. Thirty-three and one third per cent. “ Q. What did it amount to ? A. A little over $2,000.” [5] Counsel for plaintiffs offered in evidence, 10th of December, 1891, what are known as proofs of loss. The witness, E. F. Boyle, testified: “ Q. Do you know when these were sent ? A. Middle of December, I think.” Counsel for defendant objects to the proofs of loss. By the Court: “ Is the receipt of them by the company admitted ? By Mr. Jessup: “Yes; we received them, but what we object to is this, that they are not such proofs as are called for by the contract of insurance.” By the Court: “ We will overrule the objection to the proofs of loss.” Exception noted for defendant, at whose request a bill is sealed. [6] The witness, E. F. Boyle, testified: By Mr. Willard: “Q. Mr. Boyle, you say you made a careful inventory of what was in your store and reduced it to writing. It is now in your hands in'that paper? A. Yes, sir. Q. Refreshing your recollection from that paper, what was the amount of goods in your store at the time of the fire ? ” By Judge Jessup: “Counsel for defendant objects to the question. Our only objection to that question is that witness cannot be asked to refresh his recollection from a paper which is admittedly incorrect, and thereby from such a paper state what was the amount of goods.” By the Court: “ The objection is overruled.” Exceptions noted for defendant at whose request a bill is sealed. By Mr. Willard: “ Q. Now, Mr. Boyle, answer the question ? A. Ten thousand six hundred eleven dollars and sixty cents.” [7] Counsel for defendant offered proofs of loss presented by the plaintiffs to the company for the sole purpose of showing that they did not comply with the provisions in the contract. By the Court: “ Proofs of loss having already been offered on the part of the plaintiffs and the court having passed upon the sufficiency of the same, and the proofs and depositions relating to the same having been already entered on the record of the case, the objection to the same is sustained to the present offer. Exception noted for the defendant at whose request a bill is sealed.” [8] The defendant being about to close his evidence and it appearing by the undisputed evidence of the plaintiffs that defendant requested an appraisal of the amount of loss by appraisers to be appointed under the terms of the policy, and that plaintiffs refused to allow the amount of loss to be liquidated, counsel for defendant asked court to strike out all evidence relating to the amount of loss from the case, for the reason that the parties had contracted and agreed in ease appraisal is requested that the amount of the loss shall be thus settled, and that that method is binding upon the plaintiffs in this case. By the Court: “ Motion is refused.” Exception noted for defendant at whose request a bill is sealed. [9] The court charged the jury in part as follows : “The plaintiffs, John D. Boyle’s sons, who have brought an action against the Hamburg-Bremen Insurance Company of Hamburg, Germany, seek to recover from the defendant company a certain amount of damages for loss alleged to have been sustained by them by reason of a fire ■which occurred in their store on the 24th day of November, 1891, and their action is based upon the policy which has been offered in evidence. “ This policy is dated Nov. 14, 1890, and continued in force for one year up to Nov. 14, 1891. There is also in evidence a renewal of that policy, bearing the same date, and continuing the insurance in force for one year, from Nov. 14, 1891, to Nov. 14, 1892. This fire, of course, occurring on Nov. 24, 1891, occurred during the lifetime of this policy, or while it was in force, provided you find certain facts which shall be called to your attention later. “ The amount of this policy on the face of it is $2,500, but it is in evidence that there was another policy for a like sum on the same stock of goods; so that whatever the loss is that has been suffered by the plaintiffs on account of that fire, provided you find that they are entitled to recover at all, they are only entitled in this action and on this policy for the one half of the total loss. The other insurance is considered as concurrent insurance, and, therefore, the companjq if the plaintiffs are entitled to recover, will have to pay one half of the damage, and this company, if the plaintiffs are entitled to recover, will have to pay one half of the damage. So you understand if you render a verdict at all for the plaintiffs in this case, your verdict will be for the one half of the total damages suffered by the plaintiffs. “ [ In a certain time after the fire, after the 24th of November, 1891, the plaintiffs sent what are known as proofs of loss to the company. The policy requires them to do this. These ■proofs of loss have been submitted to the court for inspection, and the court has assumed the responsibility, as it is the duty of the court, to pass upon the sufficiency of the proofs of loss. We have decided that they are in compliance with the terms of the policy.] [1] Defendant’s points, among others, were as follows : “ 3. That the proofs of loss given in evidence in this case by the plaintiffs, and which were objected to by defendant at the time, and tire special defects therein pointed out, were not a compliance with the requirements of the policy in this respect, and as the plaintiffs have failed and refused to furnish any additional proofs of loss or to correct those furnished at the request of the defendants, the furnishing of the same being a condition precedent to the right of the plaintiffs to maintain any action on the policy, plaintiffs are not entitled to recover. Answer: This point is refused.” [2] “ 5. The policy having provided ‘ In the event of a disagreement as to the amount of the loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers; the insured and this company each selecting one, and the two so chosen shall then select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately, sound value and damage, and failing to agree shall submit their differences to the umpire, and an award in writing of any two shall determine the amount of such loss ; the parties thereto shall pay the appraisers thus selected by them, and shall bear equally the expenses of the appraisement and award. This company shall hot be held to have waived any provision or condition of this policy or anjr forfeiture thereof by any requirement, act or proceeding on its part relating to the appraisement or any examination herein provided for, and the loss shall not become payable until sixty days after notice, ascertainment, estimate and satisfactory proofs of loss herein required have been received by the company, including an award by appraisers, when an appraisal has been required.’ Under this agreement between the parties in the policy the amount of loss was to be settled and determined by appraisers, and the plaintiffs having refused to join the defendant in the selection of an appraiser and having refused to have the amount of such loss settled in the only way in which it could be settled under the policy, the plaintiffs cannot recover in this action. Answer: This point is refused.” [3] 6. “ The contract of insurance between the parties having further provided that no suit or action on this policy for the recovery of any claim shall be sustained.in any court.of lawor equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within'twelve months next after the fire, and it being undisputed that the plaintiffs have not fully complied with the requirements of the policy, they are not entitled to recover. Answer: This point is refused.” [4] Verdict and judgment for plaintiffs. Hrrors assigned were, (1-4) above instructions; (5-9) rulings on evidence, quoting instructions, bills of exception and evidence.