Mutual Fire Insurance v. Ritter

Pearce, J., delivered the opinion of the Court. This action was brought by Howard F. Eitter against the Mutual Fire Insurance Company of Montgomery County, Maryland, to recover upon a policy of insurance issued by the latter for the loss by fire of certain personal property described therein, and which was situated upon a farm in Baltimore County, Maryland, belonging to Matilda V. Eitter the wife of the plaintiff, who resided with him on said farm. Mrs. Eitter also held a policy of insurance issued by the same company for the protection of the buildings upon her said farm, and on May 13th, 1906, a fire occurred on the premises resulting in the destruction of certain of the insured buildings upon Mrs. Eitter’s farm, and of certain of the chattel property of the plaintiff insured in his policy, and described in the proof of loss furnished by him, the aggregate amount- of such loss being placed at $515.00. The an ¹⁶⁷ nual payment upon both these policies, as upon all policies of that company, were payable within thirty days after the first Monday in January in each year, and in default of such payment, the policies of defaulting members are suspended and are declared' not binding on the company until such interest is paid.

The amended declaration charged that in consideration of the membership of the plaintiff in the defendant company, and of the interest on the plaintiff’s premium note for the sum of $60 at a rate to be fixed by the defendant not exceeding six per cent, per annum, the defendant executed and delivered to the plaintiff its policy of insurance “whereby it insured the plaintiff, his executors, administrators or assigns, agreeably to the terms and conditions of the said' company, for five hundred and ninety-five dollars, against all loss or damage,” etc.; that the fire occurred as stated herein, and that a part of the chattels insured under said policy were totally destroyed by fire, to the sum of five hundred and fifteen dollars; that the plaintiff furnished the defendant full proof of said loss and performed all of the conditions on his part, and that the policy was never cancelled, nor was The loss ever paid, though the policy was in full force at the time the loss was sustained. The defendant pleaded four pleas; the first, second and third, averring in varying language that the policy was suspended at the time the loss occurred, and not binding upon the company because of the plaintiff’s failure to pay the interest due for the year 1906 on his premium note, within thirty days after the first Monday in January, 1906; and the fourth plea was non est factum. The plaintiff replied to the first, second and third pleas that he did pay said interest on his premium note within thirty days after the first Monday in January, 1906, and that the said policy was not suspended at the time the loss occurred, and was then binding on the company, and by way of replication to the fourth plea of non est factum, the plaintiff joined issue thereon, and the ¹⁶⁸ defendant then joined issue on the plaintiffs replications to the defendant’s first, second and third pleas. Ho evidence was offered to support the plea of non est factum, and the defendant conceded all the plaintiff’s prayers (which will be set out, with the defendant's prayers, by the Reporter), the first prayer of the plaintiff instructing the jury that according- to the undisputed evidence in the ease the policy declared on was the deed of the- defendant properly executed and delivered to the plaintiff.

The defendant’s first prayer was granted, and its other two prayers, marked second and fourth, were conceded. There being no exceptions to the ruling on the prayers, these need not be further considered. It thus appears from the pleadings and all the evidence that the only issue of fact in the case is whether the interest upon the plaintiff’s premium note was paid within thirty days from the first Monday of January, 1906. Hineteen exceptions were taken to rulings on the evidence, of which the fourteenth was abandoned at the argument in this Court, but the others remain for consideration.

The interest upon plaintiff’s premium note for the year 1906 was $2.41, and that upon Mrs. Ritter’s premium note for the same year was $4.43, the two amounts aggregating $6.90 and both were payable within thirty days after the first Monday in January, 1906, to the company’s agents, John S. Wilson & Co., at their place of business at Catonsville, Baltimore County. The secretary of the company, Mr. Far quhar, testified that a receipt for each policy is sent to the agent authorized to receive the annual interest thereon, and that there is never made more than one receipt in each year for any one policy, and these are sent out about the last of December, and the agents are required to account for and remit all such collections sometime in February, and that such receipts, both for the plaintiff’s interest, and for Mrs. Ritter’s, were sent to John S. Wilson & Co., for the year 1906, before January 1st, 1906 ; that each receipt has a stub attached showing the name of the insured, the number of the ¹⁶⁹ policy, the amount of interest due, and the place where payable, and that upon payment the agent delivers the receipt to the insured, and returns to the company the stub, after filling in date of payment; hut if not paid the agent returns both stub and receipt. He further testified that John S. Wilson returned to the company Mrs. Eitter’s stub for 1906.-but not her receipt, and accounted for her interest, but did not account for plaintiff’s interest, and did return both his receipt and stub, and the papers so returned were offered and admitted' in evidence, the following being copies thereof: first paper. Stub.

Howard F. Eitter Policy Ho. 26736 Amount due $2.47 Payable to Catons. Paid 1906 Policy 26736 Eeceipt attached. Eeceived of Howard P. Eitter the sum of $2.47 for annual interest due on premium note given by the above named and held by the Mutual Eire Insurance Company of Montgomery County, Md., and payable in advance before the expiration of the month of January, 1906, continuing said insurance for the year 1906, subject to the terms and conditions of the policy. Paid 1906.

Allan Farquhar, Treasurer. SECOND PAPER. Stub. Matilda V. Eitter.

Policy Ho. 39302 Amount due $4.43 Payable to Catons. Paid, Jan. 2, 1906. Mr. Farquhar also testified that either he or B. D. Palmer received all interest paid on premium notes, and that he received no interest for plaintiff for 1906, though he could not say of his own knowledge that none was paid to John S. ¹⁷⁰ Wilson & Co. for plaintiff, but that payment of plaintiff’s loss was refused because the company’s officers believed his interest for 1906 had never been paid, while Mrs. Sitter’s loss was paid, because they knew her interest for 1906 had been paid. Mr. Palmer also testified he had received no interest for plaintiff for 1906.

Mrs. Eitter testified that on January 2nd, 1906, she went to the office of John S. Wilson & Co. to pay her interest as she had been accustomed to do for 30 years, and also to pay plaintiff’s interest, at his request, and took with her the receipts for the interest on both policies for 1905, and that plaintiff gave her $10 out of which to pay the interest. She said she was waited on by one of the clerks, whom she could not identify, and that she said to him, “I came to pay my policies,” and handed him the ten dollar bill given her, together with the two receipts for 1905, and the clerk gave her two one dollar bills and some change out of the $10; that she did not count the change, and did not know whether it was as much as a dollar or not, that she did not remember what the clerk said, nor whether there were three or four receipts handed her with the change, but she produced when testifying, the two receipts for 1905; that upon her return home she placed all the papers she received from-the clerk in a box in a room upstairs, and when the fire occurred the box with other things was thrown out in the road and was recovered a few days later; that after the fire she found the receipt for her own interest for 1906 but could not find the receipt for plaintiff’s interest, but that she positively knew she had paid the interest on both policies. Howard B. Wilson, a member of the firm of John S. Wilson & Co., in January, 1906, identified a book shown him, as the book in which the firm entered all money received by it for interest on policies issued by defendant, and that an entry therein of $4.43 paid January 2nd, 1906, by Mrs. Eitter was in his handwriting, though he did not remember the payment nor the making of the entry, but that “he knew from the course of business of John 8. Wilson & Co., and the ¹⁷¹ entry in the book, that the entry of $4.43 Matilda V. Ritter ” teas coincident with the payment of the money, and that he can tell from the entry in the book and said course of business how much money Mrs. Ritter paid him on January 2, 1906, on account of insurance premium.” He also testified that the entry, “January 2nd, 1906,” on the stub of Mrs. Ritter’s receipt for 1906 returned' to the company was in his handwriting.

He also testified that from the course of business in their office and the entry in the book above mentioned and on the stub of Mrs. Ritter’s receipt that she did .not pay him on January 2nd, 1906, the interest then due on plaintiff’s policy. Mr. Tschiffely, defendant’s adjuster, testified that when he went to the Ritter farm to adjust Mrs. Ritter’s loss, plaintiff asked' him what they were going to do about his loss, and that he replied that the company was not liable for that because his interest had not been paid; that witness asked Mrs. Ritter what amount she had paid, and she said four dollars and some cents, and he told her that was just enough to pay hers; that she then asked how much she would have to pay to cover both, and he told her $6.90, and she then said: “I gave them a ten dollar bill, and they gave me $3.00 and some change that he suggested to plaintiff that they telephone Mr. Wilson about it, and that on the way to the telephone in a neighbor’s house, and out of the presence of Mrs. Ritter, plaintiff said: “It aint worth while to call up Mr. Wilson ;* I know that insurance has not been paid; my wife and 1 don’t get along well together, and she did this to spite me; she did it once before.” He also testified to other matters tending to discredit the testimony of Mr. and Mrs. Ritter but it is unnecessary to encumber this opinion with any reference to them further than to say that both Mr. and Mrs. Ritter were called in rebuttal and both positively denied making any of the statements offered by Mr. Tschiffely to discredit them, and plaintiff positively denied making to Mr. Tschiffely the statement above set out that he knew his interest had not been paid, that he and his wife did not get along' well and ¹⁷² she did that to spite him. All this conflicting evidence went to the jury for its consideration. The first exception was to the introduction in evidence, “of the policy for the reason as alleged by the defendant,” that it was neither in haec verba, nor in legal effect the contract set out in the declaration.

The language of the policy is “do insure the said H. F. Eitter agreeably to the terms and conditions of the said company hereunto annexed, to the amount of $595,” while the language of the declaration is “did insure said plaintiff agreeably to the terms and conditions of said company for five hundred and ninety-five dollars.” In determining questions of alleged variance between the allegations and the proof, it is essential to keep in mind the reason and object of the rule that the allegata and the probata must correspond, and this reason and object is stated thus in 22 Enc. of Pl. & Pr., page 537: “This rule is intended to answer the double purpose of distinctly and specifically advising the opposite party of what he is called upon to answer, so as to enable him properly to make out his case and to prevent being taken by surprise in the testimony at the trial, and of preserving an unerring record of the cause of action as a protection against another proceeding based upon the same cause; and however harsh and technical may have been the application of this rule at common law, and in earlier times, it is now undeniably true that only substantial and material variances between the pleadings and the proof will be regarded.” 22 Enc. Pl. & Pr., 541. This Court said in Cook v. Gill, 83 Md. 193 : “The strict rule that once prevailed has been very much relaxed for the purposes of justice, even in actions ex contractu, where the rule is more rigidly enforced than in actions ex delicto and although the probata must still conform to the allegata, it is sufficient if the substance of the issue be proved. ■ * The terms of the contract sued on must be substantially proven as alleged so as not to ■take the defendant by surprise, and also to protect him from another suit on the same cause of action.” Tested by such construction of the rule we cannot discover ¹⁷³ any error in the ruling of the Oourt admitting the policy in evidence. The undisputed testimony is that the plaintiff held but one policy