Agricultural Insurance v. Bemiller

Yellott, J., delivered the opinion of the Court. The property of the appellee was insured by the appellant; the policy bearing date August 8,1884. At this time the appellee was insured in another company, and says that he so informed the agent of the appellant, and at the same time told said agent that he intended to withdraw from said company, and soon afterwards did withdraw, so that when the fire occurred there ivas no insurance in any conrpany other than that of the appellant. The property mentioned in the policy of insurance was almost totally destroyed by a fire, occurring on the 20th of August, 1881.

The appellant refusing to pay, and denying that the policy called for an indemnification under the existing circumstances, a suit was instituted in the Court beloAv by the appellee, and resulted in a judgment in his favor. From this judgment an appeal has been taken. The first exception is to the admissibility of evidence offered by the plaintiff, objected to- by the defendant, and-ruled in by the Court. By the terms of the policy, in the event of loss by fire the party insured is required “to produce the certificate under seal of the magistrate ⁴⁰² or notary public, living nearest tbe place of fire, and not concerned in tbe loss, nor related to tbe assured, stating tbat bebas examined tbe circumstances attending tbe loss, knows the character and circumstances of tbe assured, and verily believes tbat be has, without fraud, sustained loss on tbe property insured to tbe amount claimed by him.” Tbe certificate of Henry Galt, a justice of the peace, living nearest to tbe property, was first produced.

He certified tbat be was not concerned in tbe loss, nor related to tbe assured; tbat be bad visited tbe premises tbe day after the fire, and bad found tbe barn and crop totally destroyed, except tbe foundation of tbe barn; tbat be saw tbe iron of tbe machinery, vehicles, and implements with everything burned from them tbat would burn; but tbat be was not competent to appraise tbe crop as be had not been on tbe place sufficiently to estimate it. This certificate was objected to, and tbe appellee then produced a certificate from Aloysius F. Orndorff, a magistrate, who did not live quite so near as Mr. Galt, but whose office or place of business was nearer than tbat of said Galt. This justice certified to all tbat Mr. Galt had certified to, and further said, “1 am well acquainted with the character and circumstances of tbe assured, and do verily believe tbat tbe assured has by misfortune, and without fraud or evil practice, sustained loss and injury on tbe property insured to the amount of twenty-one hundred dollars, as claimed.” This certificate, under oath, was admitted as evidence by the Court below, and this ruling of the Court forms tbe foundation for tbe appellant's first bill of excejjtion. A question precisely similar to tbe one presented by tbe first bill of exception in this case was decided in Turley vs. The North American Ins.

Co., 25 Wend., 373. In tbat case as in this, tbe policy required a certificate ⁴⁰³ of the nearest magistrate, but tbe Court decided that a strict, literal compliance was not necessary, and that in determining the contiguity of the