Caledonian Ins. Co. of Scotland v. Traub
| Decision Date | 18 December 1894 |
| Citation | 30 A. 904,80 Md. 214 |
| Parties | CALEDONIAN INS. CO. OF SCOTLAND v. TRAUB ET AL. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Carroll county.
Action by Julius Traub & Bro. against the Caledonian Insurance Company of Scotland. There was a judgment for plaintiffs, and defendant appeals. Reversed.
Argued before ROBINSON, C.J., and BRYAN, McSHERRY, FOWLER, BOYD, and PAGE, JJ.
Jas Hewes and C. T. Reifsnider, for appellant.
Ben Rosenheim and Clabaugh & Roberts, for appellees.
This action was brought by Julius Traub & Bro. against the Caledonian Insurance Company of Scotland to recover upon a policy of insurance issued by the latter for the loss by fire of certain property mentioned therein. The declaration alleges that on the 20th day of March, 1893, by a policy of insurance, in consideration of $10, the defendant company agreed with the plaintiffs to insure to the extent of $2,000 against loss or damage by fire, their stock of goods contained in the building mentioned, and to indemnify them for all such loss as they should suffer by fire, not exceeding the said sum, during the time from the 20th of March, 1893, to 20th of March, 1894, "the amount of said loss or damage to be paid in sixty days after due notice and proof of loss of the same"; that, while the policy was in force and the plaintiffs were "interested" in the property, it was consumed, whereby the plaintiffs sustained a loss; and that forthwith they gave notice thereof to the defendant, and furnished to the defendant a full and complete account of their said loss, and were ready and willing to furnish the defendant such other documents and vouchers and proof of their loss as the defendant's officers or agents should reasonably demand; and that all times have elapsed, and all things and conditions have happened and been performed, to entitle the plaintiffs to said payment, and to have and maintain this action. The pleas were (1) never promised as alleged; (2) never covenanted and agreed, etc.; (3 and 4) that the plaintiffs "did not within sixty days render a statement to the defendant stating the knowledge and belief of the said plaintiffs as to the time and origin of the said fire, and the interest of the said plaintiffs and all others in the property," and all other insurance, whether valid or not, covering any of the said property. Replication to the third and fourth pleas waiver of the condition of the policy set out in the pleas; and joinder of issue as to the other pleas.
At the trial the plaintiffs offered to read in evidence the policy of insurance sued on, but the defendant objected, and the action of the court in overruling the objection constitutes the defendant's first exception. It may be remarked there is no question before us as to the sufficiency of the declaration. That could have been raised by demurrer,--a form of pleading to which the appellant did not choose to resort. But the probata must correspond with the allegata, and therefore unless the contract, to the admission of which, as evidence, objection is made, has been incorrectly set out in the nar, it ought to have been admitted. Seigman v. Hoffacker, 57 Md. 326. By the Code (article 73, § 3) no particular form of words is required. Nor is it necessary to set out more of the alleged contract than pertains to the obligation the breach of which is complained of, and, if the alternative modifies the obligation, then the whole should be set out, according to the legal effect. Hoke v. Wood, 26 Md. 460. We do not find there is a variation between the contract alleged in the nar and the policy which the court permitted to be read by the jury. There is no variation as to the parties, the date, the obligation to pay, or the time at which the payment became due; and the general statement that "all times have elapsed and all things and conditions have happened and been performed, to entitle the plaintiffs to said payment, and to have and maintain this action," applies to the several conditions in the policy. Whether the language employed by the pleader in the clause just quoted was so general as to be bad on demurrer we are not called upon to determine. There was no error, therefore, in allowing the policy to go to the jury.
After the policy and other evidence touching the fire and the plaintiffs' loss had gone to the jury, a witness for the plaintiffs having stated, on his examination in chief, that the insurance companies and the plaintiffs had agreed to enter into an appraisement of the loss, the agreement in writing to submit to an appraisement and the award of the appraisers were offered to the witness, on his cross-examination, "for identification, as the paper signed by the plaintiffs and on behalf of the companies and award." On objection by the plaintiffs' counsel, the court refused to allow the papers to be so identified, and this constitutes the defendant's second bill of exceptions. This action of the court was clearly wrong. The policy provided for the submission to appraisers of the matter of loss in case of disagreement between the insured and the company, and, if the appraisers properly performed their duties, their award was binding upon both parties. The witness had stated that the plaintiffs and the defendant had agreed in writing to enter into an appraisement, and upon cross-examination the agreement to submit and the award...
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