Farmers' Fire Insurance v. Mispelhorn

Alvey, J., delivered the opinion of the Court. The principal questions in this case are, whether the requirements of the eighth clause or condition of the policy of insurance sued on have been waived, or whether they have been complied with by the insured. The policy provides that the insured should, forthwith after loss sustained, give notice thereof in writing to the secretary of the company, and, as soon thereafter as possible, deliver a particular account of the loss or damage sustained, under oath, declaring such account to he true and just, &c. This is required by the sixth clause or condition of the policy.

In addition to this requirement, the policy contains, as its eighth clause or condition, the following stipulation:— “And whenever required, the insured or person claiming shall produce and exhibit the hooks of account, hills of purchase, or duplicates thereof, and other vouchers, to the insurers or their specially authorized agent, in support of the claim, and permit extracts and copies thereof to he made; and also exhibit to any person or persons named by this company, and permit to he examined by them, any property damaged on which any loss-is claimed; and shall also, if required, submit to an examination or examinations, under oath, by the agent or attorney of this company, and answer all questions touching his, her or their knowledge of anything relating to such loss or damage, and subscribe and make oath to such examination, the same being reduced to writing. And until such proofs, examinations, declarations, certificates and exhibits are produced, and permitted by the claimant, when required as above, the loss shall not he payable.” The fire causing the loss occurred about the 20th of October, 1876, and the notice and preliminary proofs of ¹⁹⁰ loss, as required by tbe sixth condition of the policy, appear to have been furnished. This preliminary proof, however, not being satisfactory to the company, a special agent was sent to Baltimore to make scrutiny into the matter, and to examine the insured. The examination of the insured on written interrogatories took place the 6th or 7th of December, 1876.

The ground of objection urged by the company to the claim of the insured was that it was excessive, and all investigation had reference to that point of contest. At the time this investigation was going on, the agent of the company demanded of the insured that he should produce his bills of purchase; and upon being informed by the insured that they had been burnt, the agent then required him to produce duplicates of such bills, which the insured failed to do. The insured, in giving his testimony at the trial, on cross-examination, stated that such demand was made upon him; and he also stated that he told the agent that he could not get the duplicates required, and that he did not furnish them; and he further stated that he did not apply to any one from whom he had purchased goods, to furnish him with duplicates of his bills of purchase. After the investigation by the agent, the company still refusing to pay the amount claimed by the insured, the latter, by his attorney, notified the company of his intention to institute suit for the recovery of the claim.

To this notification, the agent of the company replied by letter, dated the 29th of January, 1877, thus: “Dear Sir: — In reply to your favor of the 26th, giving notice of intended suit, I am instructed to say, that the Farmers’ Fire Insurance Company will contest the payment of A. Mispelhorn’s claim, (in its present exaggerated form,) under the terms and conditions of his policy, though we should have preferred an amicable compromise. The company is more impelled to this course, as we cannot learn that the City Co., on the same risk, have, or intend paying the claim as made. When they ¹⁹¹ pay, this Co. will probably not delay longer. If, however, you prefer litigation with this Co., we shall contest the claim as above.” This letter was offered in evidence by the insured to show waiver; and the Court instructed the jury, that if they found such letter to have been written and sent to the plaintiff by the agent of the company, then there was a waiver on the part of the company of any further preliminary proof of loss than had before that time been presented to the company.

In thus instructing the jury we think there was error. It must be borne in mind that the whole dispute or controversy between the parties was, and had been from the commencement, in regard to the amount of the claim made by the insured. The company, according to the insured’s own testimony, had offered to pay a less sum than that claimed by him, but which he refused. In view of these facts, what meaning was conveyed by the letter of the agent, which informed the attorney of the insured that the company would contest the payment