Noonan v. Hartford Fire Ins. Co.

• Decision Date: 31 March 1855
• Citation: 21 Mo. 81
• Parties: NOONAN, Respondent, v. THE HARTFORD FIRE INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

21 Mo. 81

NOONAN, Respondent,

v.THE HARTFORD FIRE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1855.

1. A condition in a fire policy that the insured shall, after a loss, procure the certificate of the nearest magistrate or notary public as to its fairness, is a condition precedent to a recovery, and must be strictly complied with, unless there is either a waiver or an estoppel. A certificate from any other than the nearest officer qualified to act is certainly not a compliance, when the nearest not only does not refuse to act at all in the matter, but actually gives a certificate different from that required.

2. The fact that the company, after receiving a certificate which is not in compliance with the condition in the policy, enters upon an investigation as to the extent of the loss, without immediately objecting to the certificate, and offers to pay a certain amount, is not, as a matter of law, a waiver of their right to demand a strict compliance with the condition, when their proposition is declined.

Appeal from St. Louis Court of Common Pleas.

This was an action upon a fire policy for $4400, dated November 3, 1852, upon the stock and fixtures in a queensware store on Main street, in the city of St. Louis, destroyed by fire on the 7th of February, 1858.

Among other conditions in the policy, was one which is set out in the opinion of the court. It was provided that, in case of loss, the company should not be liable for any greater amount than the proportion which the sum insured by it bore to the whole amount of insurance.

The petition, after setting forth the terms of the policy and the loss, contained a specific averment of a compliance with the condition as to notice and preliminary proofs of loss, and with the condition above referred to, by procuring the certificate of the nearest magistrate, and a general averment of a compliance with all the other conditions in the policy. The plaintiff's loss by the fire was stated in the petition to be $14,500.

The defendant, in its answer, denied that the plaintiff had sustained a loss to the amount claimed, and averred that he had failed to procure from the notary public most contiguous to the place of the fire such a certificate as was required by the conditions of the policy.

Commissioners were appointed to ascertain and report the amount of plaintiff's loss by the fire, who reported his loss on stock at $12,809 77, and on fixtures at $363 24. The cause being afterwards submitted to a jury, upon the other issue, it appeared in evidence that on the next day after the fire, the plaintiff notified the defendant, agent thereof, in writing, and on the 2d of March afterwards, caused to be delivered to him a particular account of his loss, verified by his own affidavit, and accompanied by the certificates of Allen and Vogel, two justices of the peace, dated March 1st, 1853, which, as to their contents, were in compliance with the condition in the policy. There was also delivered, at the same time, a certificate dated February 28, 1853, by William H. Pritchartt, a notary public, and secretary of the board of underwriters (whose office was more contiguous to the place of the fire than that of either of the two justices,) setting forth that he was not in any way concerned in the loss, nor related to the plaintiff; that he had made due inquiry into the cause and origin of the fire, and had understood that it originated in Noonan's store; that the general opinion was that it had been fired by an incendiary; and that he had made inquiry as to the character and circumstances of said Noonan, but had received answers of such a character that he could not arrive at a conclusion as to the fairness or amount of the loss sustained.

The plaintiff's attorney testified that at the time of delivering to the defendant's agent the account of loss, affidavit and certificates, he stated that they were the plaintiff's preliminary proofs, (except the list and appraisement of goods saved, which would be furnished as soon as completed,) and requested the agent to examine them and see if anything further would be required; and on the 20th of March, he delivered to the agent a list and appraisement of the goods saved, stating that this completed his preliminary proofs, and again requesting the agent to examine them and see if anything further would be required. Some days afterwards, he again called on the agent, and was informed that the company would probably require the plaintiff to submit to an examination under oath, in compliance with a condition in the policy. On the 31st of May, plaintiff was notified in writing to submit to an examination by defendant's attorneys on the next day. This examination was submitted to and lasted for several days. The plaintiff was required to produce his books and allow them to be examined by Mr. Clark, on behalf of the various companies interested. Mr. Clark remained in possession of the books several days, and on the 8th of June, informed the plaintiff that he had got through, and was prepared to submit a proposition on behalf of the several companies. He stated that he made the plaintiff's loss $5474 54, of which sum each of the companies would pay its proper proportion. This proposition was declined. Afterwards, other propositions for a compromise passed between the parties, the last of which was made by plaintiff in writing on the 14th of June. On the 18th of June, the defendant's agent replied, declining plaintiff's offer, and stating that if his former proposition was not accepted, the company would expect full compliance with the conditions of the policy, and require him to produce the certificate of the nearest notary public. On the 27th of June, this suit was commenced. The plaintiff's attorney further testified that, during the negotiation until it was broken off, the whole difficulty was as to the amount of the loss.

The following instructions, among others, were given by the Court of Common Pleas, to which the defendant excepted:

“10. If the jury believe from the evidence that the plaintiff delivered to the agent of the defendant the notice of the fire read in evidence, on or about the next day after the fire, and also delivered to said agent the certificates of Allen, Vogel and Pritchartt, read in evidence, on or about March 2d, 1853, and that said certificates were genuine, and said Allen and Vogel were justices of the peace at the time of their date, and Pritchartt a notary public, and with the same also delivered to said agent a statement of his loss, sworn to by plaintiff, as read in evidence; and afterwards, on or about the 20th day of March, also delivered to said agent an appraisement of the goods saved from the fire, made by persons appointed therefor by both parties, and then declared to said agent that that completed his preliminary proofs of his loss; that plaintiff did said things as and for a compliance with the conditions of the policy in that behalf, and to the same as done, neither said agent or defendant made any objections on the ground of their not complying with such conditions, but after receiving the same, entered upon an examination of the amount of the loss and examined the books of the plaintiff therefor, and the plaintiff himself upon oath, and after this, did, on or about the 8th day of June, 1853, declare to plaintiff the amount of liabilities of defendant to plaintiff, arrived at from said evidences and examinations under said policy, by reason of the loss by said fire, and the same offered to pay to him, then they ought to find for the plaintiff, and for damages allow him so much of the sum of $12,809 77, as $4000 bears to $14,000, (the whole amount of insurance,) with interest from sixty days after the time they should find that plaintiff delivered to defendant said preliminary proofs and certificates, to the present time.”

“11. If no objection to the certificates of Pritchartt, Allen and Vogel was made by the defendant until after the offer by the defendant to pay, as stated in the foregoing instruction No. 10, and until after the plaintiff refused to accept the said sum in full payment of defendant's liability to him under said policy; and until after said refusal, defendant never objected to paying the plaintiff the sum claimed, on any other ground than that the amount of his loss was less than claimed by him in his preliminary proofs, then the defendant waived the condition requiring the certificate of the nearest notary or magistrate, and the notice dated June 18th, even if given by the defendant, does not bar the plaintiff's right of recovery.”

There was a verdict for the plaintiff for $4257 84, upon which there was a judgment, from which the defendant appealed.

B. A. Hill, for appellant.

1. The 10th instruction given is erroneous, for the reason that the facts stated in said instruction do not authorize the court to declare, as a question of law, that the defendant waived the certificate of the notary public most contiguous to the place of fire. The question of waiver is one of fact...