Pentz v. Pennsylvania Fire Insurance

Schmucker, J., delivered the opinion of the Court: This is an appeal from a judgment of the Superior Court of Baltimore City, sitting without a jury, in favor of the appellee in an action brought to recover upon a policy of fire insurance issued by it. The policy was issued on August 9th, 1899, to the appellant as executrix of the personal estate of Nellie Singer, and it insured in the amount of $4,000, the household furniture, etc., in a dwelling on Park Heights avenue, near Baltimore City. There were provisions in the policy compelling the insured, in case of loss or damage by fire, to furnish within 60 days thereafter preliminary proofs of loss, with an inventory of the property damaged or destroyed, and also, if required, to furnish the usual certificate from the magistrate or notary living nearest to the fire as to the bona fides of the loss, and further requiring the insured to exhibit for examination as often as requested all books of accounts, bills, invoices, etc., or copies thereof if the originals could not be procured. The insured property, together with the dwelling in which it ⁴⁴⁶ was located, was totally destroyed by fire on December 12th, 1899.

On the 21 st of the same month the insured sent to the appellee, upon the blank forms furnished by it, sworn preliminary proofs of a total loss without any schedule or inventory in detail of the burned property. On the back of these forms was printed a magistrate’s certificate which will be mentioned later on in this opinion. On January 10th, 1900, the appellee notified the appellant that these proofs were unsatisfactory because they failed to contain a schedule of the articles lost or damaged. In response to this notice the appellant on January 20th, 1900, sent to the appellee a detailed schedule and inventory of the articles destroyed by the fire fixing their aggregate value at $6,gig, protesting at the same time that she had already furnished all the proof which she was under obligation to make.

On February 14th, 1900, the appellee acknowledged the receipt of the schedule, but at the same time demanded of the appellant the bills showing the purchases of the furniture, and also a certificate from the nearest magistrate as provided for in the policy. In response to these demands the appellant replied by letter that she was unable to furnish the bills for the furniture for they had been consumed in the fire and she did not know where or from whom her testatrix had purchased it. She further in the same letter informed the appellant that the magistrate had declined to sign the certificate in the form furnished by it because that form required him to certify, in addition to the facts called for by the policy, “ that he was well acqainted with the character and circumstances of the insured, ” which he declined to do as he did not personally know the appellant who did not reside on the premises where the insured property was but in Baltimore City. She at the same time forwarded to the appellee a copy of an explanatory letter from the magistrate which was tantamount to a certificate of the matters called for in the policy, and she offered to permit an inspection of the original letter if it was desired.

The record does not show that the appellee made any reply to or comment upon this last communication from the appellant. ⁴⁴⁷ The loss not having been paid suit was brought upon the policy. The appellee, as defendant filed general issue pleas and a special plea setting up a failure on the part of the plaintiffs to furnish proof of loss according to the requirements of the policy. The record presents for our consideration seven exceptions six of which relate to the testimony and the seventh to the prayers. We will consider first the exceptions to rulings upon the testimony.

At the trial of the case the agent of the appellee who placed the policy and collected the premium on it, was asked when on the stand by the plaintiffs counsel whether he had been authorized by the defendant “ to make an offer compromise of this case.” The defendant objected and the Court sustained the objection and the plaintiff took his first exception. This ruling of the Court below was correct. It is settled by numerous decisions of this and other Courts that an offer to compromise litigation which was not accepted is not admissible in evidence against the party who made it. The law encourages amicable adjustments of litigation and permits the litigants “ to make overtures to buy their peace without prejudice to them.” Groff v. Hansel, 33 Md. 170 ; Calvert v. Friebus, 48 Md. 46 ; Home Ins.

Co. v. Baltimore Warehouse Co., 93 U. S. 548 ; Tenant v. Dudley, 144 N. Y. 504 . The Court below was also correct in sustaining the objection of the defendant to the questions to the same witness which are brought up by the second and third exceptions-He was asked whether he was authorized by his principal “ to pay $3,500 in settlement of this insurance policy” or “ to make a settlement before this suit was brought or before there was any talk of bringing a suit. ” If these two questions had been accompanied by an offer to prove that the witness had in fact offered for his principal to make a settlement of che policy it would, for the reasons hereinafter mentioned in connection with the fourth exception, have been error to exclude them, but in the absence of an offer of such further proof the objection of the defendant to the question was properly sustained. ⁴⁴⁸ We think that the learned judge below erred in the ruling presented by the fourth exception. The witness then under examination by the plaintiff’s counsel was the adjuster and representative of the defendant. He testified that he had attempted both by letter