North British & Mercantile Ins. Co v. Nidiffer
| Decision Date | 14 September 1911 |
| Court | Virginia Supreme Court |
| Parties | NORTH BRITISH & MERCANTILE INS. CO. v. NIDIFFER. |
In an action on a fire policy transferred to plaintiff, in which defendant claimed that the fire was caused by plaintiff or with his consent, evidence of declarations by the original insured, about a month before the fire, that there would shortly be a big fire, which would burn up the block, and of his inquiry as to who owned the nearby buildings, and whether they were insured, was not admissible as against plaintiff, in absence of evidence connecting him with the declarations, though it appears that plaintiff owed declarant a balance on the price of the property purchased; declarant not being a party thereto.
[Ed. Note.—For other cases, see Evidence, Dec. Dig. § 269.*]
An insured is only required to make a reasonable and substantial compliance with the conditions of a fire policy in order to sue thereon.
[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 700, 701; Dee. Dig. § 308.*]
An instruction, in an action on a fire policy, that if the jury believe that plaintiff should recover they should assess the value of the property "as of the time of the fire, and find for plaintiff three-fourths of the said value, " could not have misled the jury to fix any other value than the actual cash value of the property onthe day of the fire, though it might have been well to have directly so instructed.
[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 669.2-*]
Misstatements in the proof of loss, or insured's examination under oath, would not prevent recovery on a fire policy, unless they were intentionally made.
[Ed. Note.—For other cases, see Insurance, Cent Dig. § 1358; Dec. Dig. § 552.*]
In an action on a fire policy transferred to plaintiff by the original insured, there was evidence that plaintiff, in making his proof of loss and in his examination under oath, based his estimate of the value of the destroyed articles upon invoices shown him by the original insured when he purchased the goods, a month before the fire, and that some of the articles were excessively valued, and others shown in the proof did not exist, and the evidence made it a jury question whether plaintiff, in making proof of loss, had reason to and did believe that the invoices were correct. The court instructed that, if plaintiff in his proof of loss or examination adopted any statement of any one which was false, without attempting to know or investigate the truth of such matters, "and without any grounds for adopting said statement, " he became responsible therefor as false, requiring a finding for defendant. Held, that, while it would have been better to have used the word "reasonable" before "grounds, " it was not affirmative error to modify the instruction by inserting the quoted words; it not appearing that defendant was prejudiced thereby.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4221-4224; Dec. Dig. § 1004.*]
Error to Circuit Court, Wise County.
Action by M. D. Nidiffer against the North British & Mercantile Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Bond & Bruce and Geo. W. St. Clair, for plaintiff in error.
W. S. Cox and Morton & Parker, for defendant in error.
BUCHANAN, J. M. D. Nidiffer brought his action of assumpsit against the North British & Mercantile Insurance Company on a policy of insurance issued by that company to J. W. Hill and transferred by the latter to the plaintiff. There was a verdict and judgment in the trial court against the insurance company, and to that judgment this writ of error was awarded.
The errors assigned are based upon the action of the court in excluding evidence, in giving and refusing instructions, and in overruling the motion to set aside the verdict of the jury because contrary to the law and the evidence.
The evidence excluded tended to show that J. W. Hill, to whom the policy was originally issued, had said, about a month before the fire which destroyed the property insured, that there would be a big fire before long, which would burn up the block, and inquired of the witness, who owned property near by whether or not she was insured. One of the grounds of defense relied on was that the origin of the fire was known to the plaintiff and was originated by his acts, or that the property was destroyed with his consent by some one in privity with him. To sustain that contention it is claimed that the rejected evidence was admissible, upon the ground that Hill was interested in the policy to the extent of $500, balance of the purchase price due him on the insured property which he had sold to the plaintiff.
Hill was no party to the action, and his declarations as to what would happen to the property insured ought not to prejudice or affect the rights of the plaintiff, to whom the property and the policy had been transferred, whether theretofore or thereafter, in the absence of evidence connecting the plaintiff in any way with what Hill said about the burning of the property. There being no such evidence, the court properly rejected the alleged declarations of Hill.
The giving of instructions Nos. 1 and 2, asked for by the plaintiff, is assigned as error.
Those instructions are as follows:
(1) "The court instructs the jury that if they believe by a preponderance of the evidence that the plaintiff has fairly and reasonably complied with the terms of the policy of insurance, and if they further believe that the policy was issued to J. W. Hill and regularly transferred to the plaintiff, and that the property was afterwards destroyed by fire, then the plaintiff is entitled to recover."
(2) "The court further tells the jury that if they believe that the plaintiff is entitled to recover they shall assess the value of the property as of the time of the fire and find for the plaintiff three-fourths of said value in a sum not to exceed $1,000."
The objection made to instruction No. 1 is that a fair and reasonable compliance with the terms of the policy of insurance on the part of the plaintiff was not sufficient to entitle him to recover, but such right depended upon a literal compliance with the provisions of the policy.
The general rule in this state is that, in an action on a policy of insurance against fire, all that can be required of the plaintiff is a reasonable and substantial compliance with the conditions of the policy. See Home Ins. Co. v. Cohen, 20...
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