Birmingham Fire Ins. Co. v. Pulver

• Decision Date: 15 November 1888
• Citation: 18 N.E. 804,126 Ill. 329
• Parties: BIRMINGHAM FIRE INS. CO. v. PULVER.
• Court: Illinois Supreme Court

126 Ill. 329

18 N.E. 804

BIRMINGHAM FIRE INS. CO.

v.PULVER.

Supreme Court of Illinois.

November 15, 1888.

Appeal from appellate court, First district.

Moses & Newman, for appellant.

Kraus, Mayer & Stein, for appellee.

BAILEY, J.

This was a suit in assumpsit, brought by Emilie Pulver against the Birmingham Fire Insurance Company of Pittsburg to recover the amount of a loss under a policy of insurance against fire. The trial in the superior court resulted in a judgment in favor of the plaintiff for $1,103.85, and costs, which judgment was affirmed, on appeal, by the appellate court. By a further appeal, the defendant brings the record to this court and assigns for error the judgment of the appellate court. The policy of insurance in question was one of three policies for $1,000 each, issued to the plaintiff by the defendant and two other insurance companies, upon her stock in trade, consisting chiefly of dresses and cloaks, manufactured and in process of manufacture, and in dress goods and trimmings, contained in a certain building on North Clark street, Chicago. Various questions of fact were presented at the trial, upon most of which the evidence was more or less conflicting. Most prominent among these were whether the plaintiff was the owner of the property insured at the time the policy was issued, and at the time of the loss; whether the plaintiff fraudulently overstated the amount and value of the property destroyed or damaged in her proofs of loss; whether she fully performed the conditions of the policy relating to preliminary proofs of loss, or whether the defendant accepted the proofs rendered as a performance of said conditions, and waived further performance; and the true amount and value of the property damaged or destroyed. As to all these questions the judgment of the appellate court in favor of the plaintiff is conclusive.

Complaint is made of the admission by the superior court of certain evidence offered by the plaintiff upon the question of a waiver by the defendant of the conditions of the policy in relation to preliminary proofs of loss. The policy contained the condition usually found in fire policies on that subject, and the first count of the declaration alleged the furnishing of certain proofs of loss, and an acceptance and approval of such proofs by the defendant, and a waiver of all exceptions and objections thereto; while the second count alleged that the defendant waived and dispensed with the proofs of loss required by the policy. Certain proofs of loss furnished by the plaintiff to the defendant having been read in evidence, and it appearing that the defendant after having retained said proofs for a considerable time, took some exceptions thereto, the plaintiff, to establish a waiver of the alleged defects in the proofs, gave evidence, among other things, tending to show that shortly after said proofs were served, the attorney who drew them up had died, and that the plaintiff thereupon employed another attorney, who called upon the local agent of the defendant twice to ascertain what was the difficulty with the proofs, and to learn what should be done by way of correcting them; that the local agent offered to show him the proofs, but failed to do so; that he then called upon the defendant's adjusting agent, who also refused to let him see the proofs. The plaintiff then offered, and the court admitted in evidence over the objection and exception of the defendant, a letter written by the attorney to the local agent after the failure of his several efforts to obtain a view of the proofs, in which he recounted his several efforts in that behalf, and their result, and asked for an explanation. We can perceive no error in the admission of this letter. That, and the attorney's preceding interviews with the defendant's agents, were only parts of the attempt on his part to ascertain the nature of the objections to the proofs of loss, so as to be able to obviate them. If there were any defects in the proofs, of which the defendant in good faith complained, it was its duty to point them out, and afford all reasonable facilities to the plaintiff to ascertain what they were, so as to be able to remedy them. A refusal to exhibit the proofs was evidence tending to prove that the objections urged were merely captious, and not made with any view of obtaining corrected proofs. The unwillingness of the defendant to afford reasonable facilities to the plaintiff to prepare and serve amended proofs was evidence for the jury to consider as tending to show that it was content with the proofs already furnished, and therefore waived all defects therein. It follows that the interviews and correspondence between the plaintiff's attorney and the defendant's agents, in relation to obtaining a view of the proofs served, was competent, as tending to prove such waiver.

The plaintiff, in her proofs of loss, stated the amount of her loss to be $3,886.95, while the notary public, whose certificate is appended to and forms a part of said proofs, stated the loss to be $1,000. The defendant claims, as a matter of law, that the plaintiff is bound by the notary's certificate as to the amount of the loss, and that, as there are three concurrent policies of $1,000 each, the plaintiff's recovery should have been limited to one-third of the amount certified to by the notary. In this view we are unable to concur. Proofs of loss are required by the conditions of policies of insurance for the purpose of furnishing the insurer with evidence upon which to determine the fact and the amount of its liability, and also to serve as a basis for the adjustment of the loss with the insured. Among the proofs required are the plaintiff's sworn estimate of the amount of the loss, and an official estimate of it by a neighboring and disinterested magistrate. The magistrate's certificate is produced, not as the award of an arbitrator, or as the certificate of a party by whose estimate the insured either expressly or impliedly agrees to be bound, but merely as the estimate of a party which the insurer sees fit to require by the conditions of the policy. The insured obtains and furnishes the certificate as a performance of such condition, and not as admitting its accuracy, or agreeing to be bound by it. It is open to him, notwithstanding the certificate, in a suit upon the policy, to establish by witnesses the true amount of the loss. It has been frequently held that even the sworn statement of the insured himself, in his proofs of loss, will not estop him; but that, in a suit upon the policy, he may give evidence of the actual amount of his loss, and recover accordingly. Insurance Co. v. Kepler, 106 Pa. St. 28; Miaghan v. Insurance Co., 24 Hun, 58; Hoffman v. Insurance Co., 1 Rob. (N. Y.) 501,32 N. Y. 405;Parmelee v. Insurance Co., 54 N. Y. 193;McMaster v. Insurance Co., 55 N. Y. 222;Insurance Co. v. Huckberger, 52 Ill. 464. In Farrell v. Insurance Co., 4 Baxt. 542, it was held that the statement 7 Baxt. 542, it was held that the statement as to the value of the property lost by fire is not even competent evidence in favor of the insured, to show the amount of the loss, which could cetainly not be the rule if such certificate constituted estoppel, for the reason that estoppels must be mutual.

A number of exceptions were taken by the defendant to the rulings of the court in giving and refusing instructions to the jury. The defendant asked 19 instructions, all of which, as well as the instructions asked by the plaintiff, were refused; the court giving, in lieu of the instructions asked, a series of instructions prepared by himself, covering, as he seemed to view the case, all the questions of law presented upon which it was necessary or advisable to instruct the jury. The propriety of the practice thus adopted is challenged, ...