Citizens' Fire Ins., Security & Land Co. v. Doll

• Decision Date: 19 January 1872
• Citation: 35 Md. 89
• Parties: THE CITIZENS' FIRE INSURANCE, SECURITY AND LAND COMPANY OF BALTIMORE CITY v. LEANDER Z. DOLL.
• Court: Maryland Court of Appeals

35 Md. 89

THE CITIZENS' FIRE INSURANCE, SECURITY AND LAND COMPANY OF BALTIMORE CITY v. LEANDER Z. DOLL.

Court of Appeals of Maryland

Jan. 19, 1872

APPEAL from the Superior Court of Baltimore City.

The nature of the case is stated in the opinion of the Court.

First Exception--The plaintiff, to maintain the issue on his part, offered in evidence the policy of insurance, the eighth condition of which is as follows:

"8. In case of loss the assured should use their best endeavors in saving and protecting the property from damage at and after the fire; if they shall fail so to do, this company shall not be liable for such damage caused by such failure. The assured shall forthwith give notice of said loss to the company, and as soon after as possible render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, the actual cash value of the property their interest therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof was used, when and how the fire originated, and shall also produce a certificate under the hand and seal of a magistrate, notary public, or commissioner of deeds, (nearcst to the place of the fire not concerned in the loss as a creditor or otherwise, nor related to the assured,) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has, without fraud, sustained loss on the property insured to the amount which such magistrate, notary public or commissioner of deeds shall certify. And until such proofs, declarations and certificates are produced, and the examinations and appraisements permitted, the loss shall not be payable."

The policy was assigned or transferred to the appellee on the 24th of May, 1869, with the assent of the appellant. The plaintiff also offered in evidence articles of agreement between Charles W. Floeckher, John Fangmyer, George T. Castle and the appellee, trading as Fangmyer, Doll & Castle, dated the 18th of March, 1869, wherein it was agreed that Floeckher would execute to Milton G. Urner a power of attorney authorizing him to foreclose a mortgage, given by said Floeckher to said Castle, embracing the property insured. By the agreement the parties thereto were mutually released as between themselves, from liabilities under the articles of co-partnership, dated the 1st of January, 1867, which were also put in evidence. The plaintiff then proved the destruction of the mill by fire on the 3d of June, 1869; and proved by John Heck that he had been working as a millwright for forty-two years, that he had re-built the mill in 1861, and had examined the ruins after the fire; that he was entirely familiar with the mill, which had the best machinery and was the best mill in Frederick county. The plaintiff then asked the witness how much it would have cost to replace the mill, machinery, &c., enumerated in the policy. The defendant objected; the Court (DOBBIN, J.) overruled the objection and the defendant excepted.

Second Exception--The witness Heck answered the question in the foregoing bill of exception and stated that it would cost $16,700, without reference to the steam engine and boiler. To the admission of this answer the defendant excepted.

Third Exception--The plaintiff then testified that on the 9th of June, 1869, he called at the appellant's office and left a copy of the proofs of loss; that on the 15th he called again and asked the secretary of the appellant if the proofs were all right, and the secretary answered they were. On cross-examination the plaintiff stated that Charles W. Floeckher was a member of the firm of Fangmyer, Doll & Castle, at the time he executed to George T. Castle the mortgage of the insured property--that a difficulty occurred between Floeckher and his co-partners in December, 1868; that Floeckher's interest ceased at the time of the sale of the property by Milton G. Urner, attorney, to the witness--(the deed from Urner to the plaintiff bore date the 21st May, 1869;) that at the time of the formation of the partnership between Floeckher, Fangmyer, Castle and the plaintiff, the mill property was subject to a mortgage to the Farmers and Merchants' Bank of Frederick for $4,000. The plaintiff further offered in evidence his former claim of loss, signed and sworn to by himself, which was furnished to the defendant as preliminary proof--it stated the amount insured on each item, as described in the policy, the transfer or assignment of the policy to the plaintiff, the other insurances on the same property, the amount claimed of the defendant; that the actual cash value of the property at the time of the fire was $16,707.20 as set forth in detail in a schedule thereto annexed; that the property belonged to the plaintiff, and no other person or party had any interest therein. The schedule annexed was a detailed statement of John Heck, as to what it would cost to re-build the mill. To the admission of this statement of the plaintiff, as evidence, the defendant objected, and at the same time the plaintiff produced the following letter from the secretary of the defendant:

"BALTIMORE, July 8 th, 1869.

L. Z. DOLL, Esq.:

Dear Sir:--The proofs of loss furnished by you to this company, are wholly unsatisfactory, as to the amount of the claim, even if the company be responsible at all. The company, however, denies any responsibility by reason of material representations as to the title and property, being untrue, and for other reasons. With a reservation of all objections to your recovering in any form, and without waving any of the rights of the company under the policy, we leave you to pursue such a course as you may deem expedient.

Respectfully, WM. SHANNON, Sec'y.

The Court overruled the objection on the ground that the letter of the secretary of the defendant, was a waiver of all objection to the proofs, and permitted the same to be read to the jury. The defendant excepted.

Fourth Exception--The plaintiff offered in evidence a deed to himself from Milton G. Urner, as attorney, the character of which is stated in the opinion of the Court. To the admission of this deed the defendant objected; the Court overruled the objection and the defendant excepted.

Fifth Exception--The defendant then, to maintain the issue on its part, offered in evidence the original application for insurance, the signatures of which were admitted to be genuine, a certified copy of a mortgage of the insured property from Charles W. Floeckher to George T. Castle, also a certified copy of a mortgage of the same property from Floeckher to the Farmers and Merchants' Bank of Frederick, and the articles of co-partnership between Floeckher, Fangmyer, Castle and the plaintiff. The defendant then offered to read to the jury the joint answer of Fangmyer, Castle and the plaintiff to the bill of complaint of Charles W. Floeckher, filed against them in the Circuit Court of Baltimore city. The plaintiff objected and the Court refused to allow the answer to be read; the defendant excepted.

Sixth Exception--The plaintiff offered the following prayer which was granted:

"If the jury find from the evidence in the cause, the execution of the articles of co-partnership offered in evidence, and of the deeds from Clarke to Floeckher and from Urner to Doll and that Doll went into possession of the property, and also the execution of the policy and the assignment thereof to the plaintiff, with the assent of the defendant, and that the property insured was on or about the 3d of June, 1869, destroyed by fire, then their verdict must be for the plaintiff."

The defendant offered twelve prayers, the first of which was granted with the plaintiff's prayer as a qualification, the others were rejected.

These prayers it is deemed unnecessary to insert--the questions raised by the rejected prayers were not considered by the Court.

To the granting of the plaintiff's prayer, the defendant excepted, as also to the qualification of its first prayer and to the rejection of its other prayers. Judgment was given for the plaintiff and the defendant appealed.

The cause was argued before BARTOL, C.J., BRENT, ALVEY and ROBINSON, J.

Samuel Snowden and John Carson, for the appellant.

The true rule for damages on a policy of insurance is the actual cash value of the property at the time of the loss. The contract of insurance being one of strict indemnity for loss sustained, any other rule would enable the insured to recover more than he had lost. Elmaker vs. Franklin Ins. Co., 5 Penn., 183; Bimler vs. Nat. Ins. Co., 11 Met., 195; Commonwealth Ins. Co. vs. Sennet, 37 Penn., 208; Flanders on Fire Ins., 550.

The question put to the witness Heck, and his answer thereto, puts the recovery upon the replacing of the property lost by a new mill and complete machinery. If the mill and machinery were old and worn out, the appellee would, upon this theory, recover a new mill and new machinery. The appellee relied upon the testimony of the witness Heck, and offered no other proof of the amount of his loss. Clearly, under the foregoing authorities, the question stated in the first exception, and the answer stated in the second, should have been rejected.

The preliminary proofs are not evidence to go to the jury of the amount of the loss of the insured. Lycoming Co. vs Schaffer, 42 Penn. S. R., 181; Newmark vs. L. & S. Fire Ins. Co., 30 Mo., 160; Yonkers & N.Y. Fire Ins. Co. vs. Hoffman Fire Ins. Co., 6 Robt., 316; Commonwealth Ins. Co. vs. Sennet, 41 Penn. S. R., 161; Sexton vs. Mar. Mut. Ins. Co., 9 Barb.,...