Citizens' Mut. Fire Ins. Co. of Cecil County v. Conowingo Bridge Co.
| Decision Date | 22 June 1910 |
| Citation | 77 A. 378,113 Md. 430 |
| Parties | CITIZENS' MUT. FIRE INS. CO. OF CECIL COUNTY v. CONOWINGO BRIDGE CO. |
| Court | Maryland Court of Appeals |
Appeal from 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. Reversed.
In an action on a fire policy, pleas alleging plaintiff's failure to comply with the condition requiring the furnishing of proofs of loss, but averring a breach of condition in that plaintiff's interest in the property was not truly stated, and asserting that the policy was forfeited because of an outstanding undisclosed mortgage, were demurrable as in effect amounting to the general issue pleaded, under the rule that all defenses are open under the general issue, which show that plaintiff is not entitled to recover. The following are the prayers referred to in the opinion:
Plaintiff's first prayer: "The Conowingo Bridge Company, the plaintiff in this case, prays the court to instruct the jury that if they find from the evidence in this case that the defendant made the policy of insurance offered in evidence and delivered the same to the plaintiff, and if they further find that the property described in said policy, to wit, that part of Main Conowingo Bridge across Susquehanna river located in Cecil county was totally destroyed by fire on or about the 5th day of June, 1907, and that the plaintiff did give and the defendant did receive on the 8th day of June 1907, the notice of said fire, dated the 8th day of June 1907, offered in evidence, and if they further find from the evidence that said notice was made out and sent with reasonable dispatch under the circumstances mentioned in the evidence after the occurrence of said fire, and if they further find from the evidence that the plaintiff did render and furnish and the defendant did receive the proof of loss offered in evidence, if the jury find said proof of loss, on or about the 6th day of August, 1907, and if the jury find from the evidence the letters from Thomas H. Robinson addressed to W. T. Warburton, the president of the defendant, dated July 30, 1907, October 14, 1907, January 2, 1908, January 4, 1908, and January 11, 1908, and that they were received by the said W. T. Warburton and that said W.T. Warburton was the president of the defendant, and if they further find the letters of said W. T. Warburton to said Thomas H. Robinson offered in evidence and dated October 26, 1907, and January 3, 1908, and that said letters were received by said Thomas H. Robinson, and further find that said Thomas H. Robinson was authorized by the plaintiff to collect from the defendant the amount claimed by the plaintiff to be due it under the policy of insurance offered in evidence in this case, if the jury find said policy, then the jury may find from said letters and evidence in this case that the defendant waived the provision of the policy requiring the proof of loss to be filed in 30 days from the date of the fire, and the verdict of the jury may be for the plaintiff, even though the jury may find from the evidence that said proof of loss was not rendered by the plaintiff and not received by the defendant within 30 days from the date of the fire mentioned in the evidence."
Plaintiff's second prayer: "The plaintiff prays the court to instruct the jury, and if they find from the evidence in this case that the defendant made the policy of insurance offered in evidence, and delivered the same to the plaintiff, and if they further find that the property described in said policy and mentioned in the evidence, to wit, that part of Main Conowingo bridge across Susquehanna river located in Cecil county, was totally destroyed by fire on or about the 5th day of June, 1907, and that the plaintiff did give the defendant, and the defendant did receive on the 8th day of June, 1907, the notice of said fire dated the 8th day of June, 1907, offered in evidence, and if they further find that said notice was made out and sent to the defendant with reasonable dispatch under the circumstances mentioned in the evidence after the occurrence of said fire, and if they further find from the evidence that the cash value of said Main Conowingo bridge exceeded the total amount of insurance in force on said Main bridge at the time of said fire, then the plaintiff is entitled to recover in this action, and the verdict of the jury may be for the plaintiff."
Plaintiff's third prayer: "The plaintiff prays the court to instruct the jury that, if their verdict is for the plaintiff, they must in estimating the damages find from the evidence the actual cash value of the whole property destroyed by the fire as given in evidence, and, if the jury shall find that the whole loss of the plaintiff exceeded in amount the whole amount of insurance as shown by the evidence on the property destroyed by the fire, then their verdict should be for the full amount insured under the policy in suit, together with interest thereon in the discretion of the jury."
Defendant's first prayer: "At the request of the defendant, the court instructs the jury that the plaintiff has offered no evidence legally sufficient to prove that within 30 days after the happening of the fire mentioned in the declaration it furnished to the defendant preliminary proof of its alleged loss by said fire, as prescribed by the conditions of the policy sued on and read in evidence, and that no evidence has been offered legally sufficient to show that the failure of the plaintiff to furnish to the defendant preliminary proof of its alleged loss within 30 days after the fire was waived by the defendant, and that, therefore, their verdict must be for the defendant."
Defendant's second prayer: "The defendant by its counsel prays the court to instruct the jury that if they shall find that at the time the policy was issued there was outstanding a mortgage executed and delivered by the plaintiff, bearing date October 1, 1904, to the Colonial Trust Company of Baltimore to secure a bonded indebtedness of the plaintiff company to the extent of $15,000 and that the plaintiff did not at the time said policy was issued state the existence of such outstanding mortgage, then such failure of the plaintiff to state the existence of such outstanding mortgage on the property covered by the policy was a violation of the condition of the policy in the words and figures following: 'This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein'--and accordingly the plaintiff is not entitled to recover and the verdict must be for the defendant."
Defendant's third prayer: "That the plaintiff has offered evidence legally sufficient to show that the loss sustained by it by the fire shown by the evidence exceeded the total amount of insurance held by the plaintiff on the property covered by the policy sued on, and that, therefore, the plaintiff can recover no more than the pro rata contribution of the defendant on the policy sued on to the total insurance of the plaintiff on the property covered by the policy sued on."
Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE, THOMAS, PATTISON, and URNER, JJ.
W. Calvin Chestnut, for appellant.
Thomas H. Robinson and Shirley Carter, for appellee.
It appears from the docket entries in this case that the suit was instituted in the circuit court for Cecil county on the 11th day of April, 1908, and upon suggestion of the plaintiff was on the 21st of September, 1908, removed to the circuit court of Baltimore county for trial. Subsequently, on the 8th of January, 1909, it was removed upon the suggestion of the defendant to the court of common pleas of Baltimore city. On the 16th of January, 1909, a judgment by default for want of a plea was entered in favor of the plaintiff, but on the 22nd of July, 1909, this judgment was stricken out, with leave to the defendant to plead. The trial resulted in a verdict in favor of the plaintiff, and the defendant has appealed.
The declaration consists of a single count based on a policy of fire insurance, and this in substance charges that the defendant the Citizens' Mutual Fire Insurance Company of Cecil County, a body corporate, on the 28th day of March, 1907, by its policy of insurance issued as of that date and in consideration of the stipulation therein named and of the payment of one dollar and fifty cents as a premium, promised and agreed with the Conowingo Bridge Company, a corporation, to insure it subject to the conditions therein named and during the period commencing on the 28th day of March, 1907, to the 10th day of February, 1912, to the extent of $3,000 against all direct loss or damage by fire on that part of main Conowingo bridge across Susquehanna river located in Cecil county. The loss, when it did occur, the insurance company agreed, subject to the terms of the policy, to pay to the plaintiff within 90 days after due notice, ascertainment, estimate, and satisfactory proof of loss was received. The declaration then avers that on the 5th day of June, 1907, and during the time prescribed in the policy, the bridge therein described and owned by the plaintiff was consumed and totally destroyed by fire, that forthwith the plaintiff did give notice thereof to the defendant company and furnish the proof of loss required, and offered and tendered itself ready and willing to furnish such other proof as the defendant's officers and agents should reasonably demand, and the plaintiff did thereupon demand of...
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