Davidson v. Providence Wash. Ins. Co., 80.

• Citation: 157 A. 148
• Decision Date: 13 October 1931
• Docket Number: No. 80.,80.
• Parties: DAVIDSON v. PROVIDENCE WASHINGTON INS. CO.
• Court: New Jersey Supreme Court

157 A. 148

DAVIDSON

v. PROVIDENCE WASHINGTON INS. CO.

No. 80.

Supreme Court of New Jersey.

Oct. 13, 1931.

Action by Abraham Davidson against the Providence Washington Insurance Company. On rule for new trial.

Rule made absolute.

Argued May term, 1913, before CAMPBELL, LLOYD, and BODINE, JJ.

Arthur T. Vanderbilt, of Newark, for the rule.

David T. Wilentz, of Perth Amboy (Joseph T. Lieblich, of Paterson, of counsel), opposed.

PER CURIAM.

The insurance company defendant has a rule for new trial in a case wherein a verdict was rendered against it for $3,269.

The reasons urged on the rule are that the jury was misdirected as to the law, that certain requests were improperly refused, and that the verdict was against the weight of the evidence on two vital elements of fact, and as to the damages.

The policy was for fire insurance on the plaintiff's bakery. On April 21, 1929, a fire occurred which totally destroyed the stock of merchandise, and. as required by the policy, the plaintiff supplied proofs of loss". On August 7, 1929, the defendant wrote a letter to the plaintiff in which it rejected these proofs on the grounds that the claim was excessive, and that the origin of the fire was not correctly stated. The letter added the following: "You are hereby required to furnish in detail an itemized statement of loss supported by bills and invoices setting forth the correct prices and quantities and the amount of loss and damages sustained by you. We hereby notify you that it is the company's desire to conduct an examination under oath at the offices of Arthur T. Vanderbilt, #790 Broad Street, Newark, on the afternoon of August 13, at 2 P. M., and we respectively request your presence there at that time."

The plaintiff appeared with his attorney (by arrangement with opposing counsel) the day after the time and place named, the attorney stating, however, that it was voluntary and not in response to the notice, which he deemed insufficient under the terms of the policy. The plaintiff did not there produce the bills, but submitted to examination.

At the end of the examination, there was an adjournment to September 5, 1929, counsel for the company stating that it was for the purpose of having plaintiff bring his bills. On September 5, the plaintiff did not appear.

Nothing further appears to have taken place, and the present action was begun.

At the trial before Judge Ackerman, the failure of the plaintiff to furnish the bills, etc., and to subscribe to his statement was. proved, and it was contended that this barred the present action under the terms of the policy, which provided that no action should be sustainable until after full compliance with its requirements in this regard. Judge Ackerman charged the jury that the notice to appear and produce was legally insufficient, but left...