North British & Mercantile Ins. Co v. Edmundson

• Decision Date: 23 November 1905
• Citation: 52 S.E. 350,104 Va. 486
• Court: Virginia Supreme Court
• Parties: NORTH BRITISH & MERCANTILE INS. CO. v. EDMUNDSON.

52 S.E. 350

104 Va. 486

NORTH BRITISH & MERCANTILE INS. CO.

v.EDMUNDSON.

Supreme Court of Appeals of Virginia.

Nov. 23, 1905.

1. Insurance—Fire Policy—Proofs of Loss —Time for Furnishing.

Where a fire policy provides for furnishing of proofs of loss within 60 days, hut it is not provided that there should be a forfeiture in case of failure to so furnish them, it is sufficient if they are furnished within a reasonable time.

2. Same—Instructions.

In an action on a fire policy, the evidence was conflicting as to whether insured was told by the agents of the insurer at the time the insurance was taken that an inventory exhibited by insured was sufficient, and defendant requested an instruction that if it was understood between the parties that the inventory offered was not a sufficient compliance with the provisions of the policy, and that insured promised to make a new inventory and on such understanding the policy was written, plaintiff could not recover. Held, that it was proper to modify the instruction by stating that such was the case, unless insured was told by insurer's agent at the time the insurance was taken that the inventory was sufficient.

3. Same —Iron-Safe Clause —Substantial Compliance.

A substantial compliance by an insured in a fire policy with the iron-safe clause is sufficient.

[Ed.-Note.—For cases in point see vol. 28, Cent. Dig. Insurance, § 853.]

4. Same — Proofs of Loss — Waiver—Evidence.

Where the general agent of a fire insurance company was presented with proofs of loss, and did not point out any defects in it, but indicated a purpose to contest the policy for failure to comply with the iron-safe clause, it was sufficient to warrant a finding that there was a waiver or a substantial compliance with the requirements as to proofs of loss.

5. Same — Iron-Safe Clause — Compliance with Clause—Evidence.

Insured, who was a village undertaker, presented to the insurer an inventory, which was accepted as sufficient on the writing of the policy, and thereafter in an ordinary manilla book, which contained the inventory, he entered all sales made by him and kept the same in an iron safe and produced it after the fire. He had made no purchases. He also kept a ledger, in which he made entries of certain business transactions, but which was kept in a desk and lost. It did not appear that such book contained any entry of transactions essential to an understanding of insured's business. Held, that the facts warranted a finding that there had been a substantial compliance with the iron-safe clause.

Error to Circuit Court, Frederick County.

Action by David E. Edmundson against the North British & Mercantile Insurance Company. Judgment in favor of plaintiff, and defendant brings error. Affirmed.

Sipe & Harris, for plaintiff in error.

Barton & Boyd and Harry R. Kern, for defendant in error.

CARDWELL, J. This action was instituted by defendant in error to recover the amount alleged to be due upon a fire insurance policy issued by the plaintiff in error covering such losses as might be sustained by the insured in consequence of the destruction by fire of his stock of merchandise at Middletown, Va., embracing coffins, trimmings, instruments, and other goods and merchandise used in an undertaking establishment.

The policy was underwritten August 21, 1902, for $700, on the insured's stock of merchandise to the value of $650, and on office furniture and fixtures, including an iron safe, all in the same building, to the value of $50. The value of the property burned was $1,045.50; the fire occurring January 18, 1903. In an inventory made by the insured July 21, 1902, one month before the issuance of the policy, the property of the insured was of the aggregate value of $1,410.75; but in the inventory there was a hearse and a set of furniture not covered by the policy.

A few days after the fire, in response to an informal notice of the fire to the agent of plaintiff in error at Winchester, Va., the said agent and the adjuster of plaintiff in error visited Middletown for the purpose of ascertaining the character and circumstances of the loss, taking at the time the paper known as a nonwaiver agreement, with the view to avoiding any waiver of the rights of the parties growing out of such examinations as might seem necessary preliminary to an adjustment of the loss. A call was made by the adjuster upon the defendant in error for invoices for the original stock of goods, which he tried to get, but could not, and, while there were some negotiations following, plaintiff in error took no steps to pay the loss, and this suit was instituted.

The defense made is on the ground that the terms of the policy were not complied with, especially the provision known as the iron-safe clause, requiring books which should "clearly and plainly present a complete record of business transacted, including purchases and sales made for cash and credit, from date of inventory, " and that these books should be securely kept in an iron safe, or in some place not exposed to fire.

This defense was made under the general issue, and by a number of special pleas, on which the jury found against the plaintiff in error the amount claimed by defendant in error of $700, with interest thereon from December 10, 1903; and to the judgment on the verdict this writ of error was awarded.

Of the assignments of error made in the petition for the writ of error, only the third, fourth, and fifth are relied on here.

The third is to the granting of the eight instructions offered by defendant in error, which are as follows:

"(1) The court instructs the jury that the law only requires from an insured person a substantial, and not necessarily a literal, compliance with the requirements of his policy, and if they believe from the evidence that the plaintiff in this case substantially complied with the requirements of the policy sued on, then they must find for the plaintiff the amount of his loss as proved by the testimony, not exceeding the sum of $700, with interest from 60 days after the proof of loss; the said sum to be three-fourths the cash value of the stock, not exceeding $650, and three-fourths cash value of office furniture and fixtures and iron safe, not exceeding $50.

"(2) If the jury believe from the evidence that the defendant company waived any of the requirements or conditions of the policy sued on, then they are instructed that such waiver is equivalent to the performance by the plaintiff of such conditions as they believe were so waived.

"(3) If the jury believe from the evidence that the plaintiff offered to the defendant a proper proof of loss within a reasonable time, under all the circumstances of the case, after the fire and not later than 60 days prior to the end of 12 months from the date of the fire, then they are instructed that such offer was in full time, even though it was made more than 60 days after the date of the fire.

"(4) The court instructs the jury that a substantial compliance with the requirements of the policy is all that is required in a proof of loss, and if the jury believe that the plaintiff in a reasonable time, and more than 60 days prior to the end of 12 months after the fire, offered to the defendant such proof of loss and that the defendant refused to accept the same, but failed to point out any alleged defects in the said proof of loss, then the defendant is to be taken to have waived the defects not so pointed out, and the right to require any further proof of loss.

"(5) If the jury believe from the evidence that an inventory substantially in accordance with the requirements of the policy was made out by the plaintiff within 12 months prior to the date of the policy, then they are instructed that the plaintiff was under no obligation to make any other inventory, or keep any set of books of business transactions or any bills or invoices of any purchases or sales (if any were made), except such business, purchases, or sales as were made since the date of the inventory; and if they believe that the plaintiff did keep such a record of sales or purchases, and did produce it and the original inventory after the fire, then they are instructed that this is a sufficient compliance with the provisions of the policy in this respect

"(6) The court instructs the jury that, even though the inventory, produced in evidence as taken within 12 months prior to the date of the policy, contained also items which were not insured, that this does not affect the validity and sufficiency of such an inventory.

"(7) The court instructs the jury that no evidence is admissible to change or alter the undertakings and promises of the parties to the contract of insurance, and that thewaivers relied on instead of performance can only have reference to some fact existing at the time of the alleged waiver. No provision of the 'iron-safe' clause can be considered waived in this case other than if the jury believe that the insured was told by the agents that the inventory exhibited to them at the time of the issuance of the policy was sufficient, no other inventory would be required of him, although said inventory did not comply with the requirements of said clause. To this extent, and to this extent only, is any evidence admissible to show a waiver of any provision in said clause. Proofs of loss required by this policy may be waived by words, acts, or conduct that reasonably induced insured to believe a strict compliance with the policy was not required.

"(8) The court instructs the jury that, even though the plaintiff may have promised to produce any bills, invoices, other than those referred to in instruction No. 5, and failed so to produce them, such a promise is not binding upon the plaintiff at all, especially if they believe he was unable to procure them and so notified the defendant company."

During the negotiations for the insurance, defendant in error showed the agents of plaintiff in error, who called at his place of business and solicited...