Citizens' Mut. Fire Ins. Co. of Cecil County v. Conowingo Bridge Co.

• Decision Date: 17 November 1911
• Citation: 82 A. 372,116 Md. 422
• Parties: CITIZENS' MUT. FIRE INS. CO. OF CECIL COUNTY v. CONOWINGO BRIDGE CO.
• Court: Maryland Court of Appeals

82 A. 372

116 Md. 422

CITIZENS' MUT. FIRE INS. CO. OF CECIL COUNTY v. CONOWINGO BRIDGE CO.

Court of Appeals of Maryland

November 17, 1911

Appeal from Baltimore Court of Common Pleas; Thos. Ireland Elliott Judge.

Action by the Conowingo Bridge Company against the Citizens' Mutual Fire Insurance Company of Cecil County. Judgment for plaintiff, and defendant appeals. Affirmed.

Requested prayers which were based upon evidence excluded by the court were properly refused. See, also, 113 Md. 430, 77 A. 378. The following prayers were refused to defendant:

"(1) At the request of the defendant, the court instructs the jury that, under the uncontradicted evidence in this case and under the pleadings, there is no evidence legally sufficient to entitle the plaintiff to recover, and the verdict must, therefore, be for the defendant." Refused.

"(3) At the request of the defendant, the court instructs the jury that by the uncontradicted evidence in the case the plaintiff failed to furnish proofs of loss within 30 days as required by the policy, and therefore their verdict must be for the defendant, unless the jury find that the defendant has waived the failure to file proofs of loss within the time required, and the jury are further instructed they are not at liberty to find that the defendant did waive said breach of the conditions of the policy, unless they find that there was an intentional abandonment of said breach by some authorized agent of the defendant company having knowledge of the forfeiture." Refused.

"(4) At the request of the defendant, the court instructs the jury that it appears from the uncontradicted evidence in this case that at the time that the witness William T. Warburton wrote the letter of October 26, 1907, to Thomas H. Robinson, the said Warburton did not know that the proofs of loss required to be furnished by the insured under the policy sued on had not been furnished within thirty days as required by the policy; and, there being no evidence in this case legally sufficient to show any waiver by the defendant of the failure to furnish said proofs of loss other than said letter of October 27, 1907, therefore, their verdict must be for the defendant." Refused.

"(5) At the request of the defendant, the court instructs the jury that by the uncontradicted evidence the witness William T. Warburton had no express or implied authority to bind the defendant by waiving the failure to file proofs of loss within the time required by the policy; and, as all the acts alleged by the plaintiff to constitute evidence of a waiver occurred after the forfeiture of the policy by reason of the failure to file proofs of loss within 30 days after the fire, the plaintiff is not entitled to rely upon any apparent authority of the said Warburton to waive said proofs of loss, there being no evidence in the case legally sufficient to show that the plaintiff was in any way misled to its prejudice by said alleged waiver by the said Warburton, and their verdict must, therefore, be for the defendant." Refused.

"(6) At the request of the defendant, the court instructs the jury that a waiver by the defendant of the forfeiture of the policy by reason of the failure to file proofs of loss within 30 days means an intentional abandonment by the defendant of a known right that there is no evidence in this case to show that at the time the said William T. Warburton wrote the letter of October 26, 1907, he either knew of the forfeiture of the policy then existing, or intended to waive it, and therefore their verdict must be for the defendant, there being no evidence in this case other than the said letter legally sufficient to show any waiver by the defendant." Refused.

"(7) At the request of the defendant, the court instructs the jury that if they find that the witness William T. Warburton, president of the defendant company, had no actual authority from it to waive the plaintiff's failure to file proofs of loss within 30 days, as required by the policy, and further find that the plaintiff was in no way misled to its prejudice by the correspondence between Thomas H. Robinson and William T. Warburton offered in evidence in this case, then there is no evidence in this case legally sufficient to show any waiver by the defendant of the plaintiff's failure to file proofs of loss as required by the policy." Refused.

"(8) At the request of the defendant, the court instructs the jury that if they find that the proofs of loss were received by the defendant's secretary, Charles E. Warburton, on August 6, 1907, and that thereupon the secretary called to the attention of the directors of the company the fact that the policy requirement as to furnishing proofs of loss 30 days after the fire had not been complied with, and was instructed by said directors not to waive said forfeiture, but that the company would insist thereon, and at the time of writing the letter of October, 1907, the president of the company, William T. Warburton, had no actual authority from the company to waive failure to file the proofs within the time required, and did not know at the time of writing said letter of said forfeiture, and did not learn thereof until on January 3, 1908, when he wrote the letter of that date offered in evidence, then there is no evidence in the case legally sufficient to show any waiver by the defendant of the failure of the plaintiff to file proofs of loss as required within the time required by the policy, and their verdict must be for the defendant." Refused.

"(9) At the request of the defendant, the court instructs the jury that by the true construction of the contract between the parties it consisted, not only of the policy 1392 offered in evidence, but also of the application No. 1376 therein referred to, and the by-laws of the defendant company also admitted in evidence, and that by the true construction of said whole contract it appears that the plaintiff intended to obtain insurance on the short bridge only, which by the uncontradicted evidence was not destroyed by the fire, and, there being no evidence in this case legally sufficient to show that the different description of the property on the policy form was requested or authorized by the plaintiff, the verdict must be for the defendant." Refused.

"(10) At the request of the defendant, the court instructs the jury that, by the true construction of the insurance policy referred to in the declaration and offered in evidence by the plaintiff numbered 1392, the insurance contract therein contained consisted, not only of said policy 1392, but also of the application in writing, No. 1376, therein referred to, and also the by-laws of the defendant company, and that it appears from said whole contract the minds of the parties never met on the identity of the property to be insured, and the plaintiff, therefore, is not entitled to recover in a suit at law on said contract, and the verdict must, therefore, be for the defendant." Refused.

"(11) At the request of the defendant, the court instructs the jury that if it finds that the typewritten clause pasted on the policy reading, 'other insurance permitted without notice until required' was not placed thereon by the defendant, or by any agent or employé thereof, then their verdict must be for the defendant, the evidence being uncontradicted that there was other insurance on the main bridge at the time of the issuance of said policy sued on, and said policy distinctly providing that it should be void in case of other insurance on the property." Refused.

"(12) At the request of the defendant, the court instructs the jury that by the uncontradicted evidence the policy 1392 offered in evidence was first issued without any permission for other insurance indorsed thereon; that there is no evidence in this case legally sufficient to show that the phrase, 'other insurance permitted without notice until required,' typewritten on the policy by a separate sheet annexed thereto, was ever placed thereon by the authority of the defendant company; that by the uncontradicted evidence there was other insurance on the property destroyed by fire; that the policy 1392 distinctly provided that it should be void in case of other insurance, and therefore their verdict must be for the defendant." Refused.

Argued before BOYD, C.J., and BRISCOE, PEARCE, THOMAS, PATTISON, URNER, and STOCKBRIDGE, JJ.

W. Calvin Chestnut, for appellant.

Thomas H. Robinson and Shirley Carter, for appellee.

THOMAS J.

This is the second appeal in this case. The suit is on a fire insurance policy for $3,000, and the property described in the policy is "that part of main Conowingo bridge across the Susquehanna river located in Cecil county."

It appears from the record in this case, as it did on the former appeal, that the Conowingo bridge extended from Harford county across the Susquehanna river to Cecil county, and consisted of what was called the "main bridge," which was 1,328 feet long, and extended from the Harford county side of the river to a causeway, about 100 feet long constructed on an island, and another bridge called the "short bridge," which was 500 feet long, and extended from the other end of said causeway to the Cecil county shore. Seven hundred and ninety-nine feet of the main bridge were in Hartford county, and the remaining 529 feet of the main bridge and the short bridge were in Cecil county. The main bridge was totally destroyed by fire on the 5th of June, 1907, and on the 8th of June the secretary of the appellee, the Conowingo Bridge Company, wrote to the secretary of the appellant, the Citizens' Mutual Fire Insurance Company, notifying him that "the main structure of the Conowingo bridge located in Cecil and Harford counties" had been entirely...