Planters Mutual Ins. Co. of Washington County v. Deford

• Decision Date: 02 July 1873
• Parties: THE PLANTERS' MUTUAL INSURANCE COMPANY OF WASHINGTON COUNTY v. THOMAS DEFORD, et al., trading as DEFORD & CO.
• Court: Maryland Court of Appeals

38 Md. 382

THE PLANTERS' MUTUAL INSURANCE COMPANY OF WASHINGTON COUNTY v. THOMAS DEFORD, et al., trading as DEFORD & CO.

Court of Appeals of Maryland

July 2, 1873

APPEAL from the Circuit Court for Washington County.

A statement of the case will be found in the opinion of the Court.

At the trial of the cause in the Court below the plaintiffs offered the following prayers, which the Court, (PEARRE, J.,) granted:

1. If the jury shall find from the evidence that the plaintiffs before the 17th day of July, 1871, furnished to the defendant the preliminary proof of loss by fire of the 30th of June 1871, offered in evidence, and that the defendant retained said proof of loss, and made to the plaintiffs no objection to the same on the ground of any formal defect therein, and that said defendant did not, previous to the 17th day of October, 1871, make to the plaintiffs any denial of the defendant's liability for any loss on the policy offered in evidence, and that the letters of the plaintiffs and of Geo. W. Pole, dated between the first day of July and the last of October, 1871, and read in evidence, passed between said plaintiffs and the said Pole, as agent of the defendant and if they shall further find, that the defendant sent an agent or agents to the Bottle Run Tannery, on or about the 16th day of August, 1871, to examine and ascertain the amount of the plaintiffs' loss by said fire, then the defendant cannot now object to any formal defect in said preliminary proof under the conditions annexed to the said policy.

2. If the jury shall believe from the evidence, that before the 2nd of May, 1871, Thomas Deford, one of the plaintiffs, and the Union Fire Insurance Company of Baltimore, contracted for an insurance in said Company of $2,500 on stock of hides and leather in process of tanning, and $2,500 on the building at Bottle Run Tannery, and that by mistake the clerk of said Company filled up the policy offered in evidence for an insurance of $5,000 on the stock alone, and that subsequently, on the 3rd of June, 1871, the memorandum of that date, signed by Otis Spear, secretary of said Company was written on the face of said policy in order to rectify the same, and for the purpose of expressing the real contract made as aforesaid before the 2nd day of May, 1871, then the insurance in said policy of $2500 on the building must be considered as made previous to the insurance made by the defendant in the policy of May 6th, 1871, on which the present action is brought.

3. If the jury shall believe from the evidence that the paper signed by Shields, Topper and Smouse was honestly believed by the plaintiffs, when the same was made out and sent to the defendant, to contain a correct statement of the amount of property covered by the insurance, and at the place of and damaged by the fire, and a fair and bona fide estimate of the loss thereon occasioned by the fire, so far as such loss could be ascertained by them at the time, then the fact (if the jury shall find such fact from the evidence) that the number of hides actually at the Bottle Run Tannery at the time of the fire, was less than that contained in the statement of said paper, cannot defeat the plaintiffs' right to recover for the actual loss sustained by them.

The defendant offered the following prayers, which the Court rejected, except the first, fourth, fifth and tenth, which were conceded by the plaintiffs, and the third, which was granted with a modification:

1. If the jury shall find from the evidence in the cause the sending by the defendant to George W. Pole, the treasurer of the defendant, of the letter of July 15th, 1871, and the paper signed and sworn to by Smouse, Topper and Shields, and that the plaintiffs knowingly stated in the said paper a greater quantity of hides or sides as being at the tannery when the fire occurred than had actually been received there, and that the said paper was not honestly believed by the plaintiffs at the time the same was made out and when sent to the said Pole, to contain a correct statement of the amount of the hides or sides covered by the insurance and at the place of, and lost or damaged by the fire, and a fair and bona fide estimate of the loss thereon occasioned by such fire, so far as such loss could be ascertained by them at the time, then the plaintiffs are not entitled to recover, even if the jury should believe that in fact the loss of the plaintiffs exceeded the insurance.

2. If the jury shall find from the evidence that the plaintiffs furnished George W. Pole, the treasurer of the defendant, the paper in the handwriting of the plaintiff, Thomas Deford, in which occur the words following: "Hides and leather stock in tannery, 56,500.00 dollars, belonging to Deford & Co.," such words refer to the stock of hides and leather, and if they find that the plaintiffs knowingly stated in said paper a greater quantity of hides and leather as being on hand at the tannery at the time of the fire than was actually there at the time, and that said statement was not honestly believed by the plaintiffs or the said Thomas Deford when the same was made out and sent to said Pole, to contain a correct statement of the stock of hides and leather in the tannery at that time, then their verdict should be for the defendant, even although they should think that the plaintiffs have sustained loss to the amount of the insurance.

3. If the jury shall find the sending by the plaintiffs to George W. Pole, treasurer of the defendant, of the paper signed by Smouse, Topper and Shields, and that by said paper a greater quantity of hides or sides was stated to be at the tannery at the time of the fire than was then actually there; and shall further find that the plaintiffs believed the said statement to be correct at the time the same was sent, but that they afterwards and before the writing of the letter from them to said Pole, dated 30th September, 1871, discovered the incorrectness of such statement, and that they did not correct the same, then the plaintiffs cannot recover. (Modified by the Court as follows:)

"Provided the plaintiffs did not make such correction of the number of hides or sides, knowing the number of the hides or sides therein stated, and knowing the same to be incorrectly stated therein with intent to defraud the defendant."

4. If the jury find that there has been any fraud or intentional false swearing by the plaintiffs, or any of them, with respect to their claims against the defendant, then the verdict should be for the defendant.

5. That the law imposed upon the plaintiffs the obligation to take care of the damaged stock after the fire, and they could not have surrendered the said stock to the defendant.

6. If the jury shall find that the application offered in evidence was written by George W. Pole, the treasurer of the defendant, and was, on the 24th of April, 1871, sent by him to the plaintiffs, at Baltimore, to be examined and executed by the plaintiffs, and that the same was so signed by the plaintiffs, at Baltimore, and returned by mail to said Pole, at Hagerstown, on or about the 2nd day of May, 1871, and that the policy offered in evidence was thereupon issued to the plaintiffs; and shall further find that there was not an insurance of four thousand dollars on the interest of Deford & Co., the plaintiffs, in the tannery building, and an insurance of at least five hundred dollars upon their interest in the bark mentioned in said policy, then the plaintiffs cannot recover, and an insurance of the interest of the trustees of Jones is not such an insurance as can be considered.

7. That the proofs of loss furnished by the plaintiffs to the defendant are insufficient, and there is no sufficient evidence of any waiver by the defendant of the requirements of the policy with regard to said proofs.

8. If the jury shall find that Topper and Shields were laborers at the plaintiffs' tannery, and that Smouse was a farmer or mechanic, residing in the neighborhood of the tannery, and not an agent of the plaintiffs, and that the defendant had no notice or knowledge that the said Topper, Shields or Smouse were not agents of the plaintiffs, then the defendant cannot be regarded as having waived the defects in the proofs of loss, arising out of the fact that the said proofs are not signed by the plaintiffs or some agent of the plaintiffs, and the plaintiffs cannot recover.

9. If the jury shall find from the evidence in the cause the facts set forth in the preceding prayer of the defendant, and shall further find the issuing to the plaintiffs by the Union Insurance Co. of Baltimore of the policy offered in evidence, and the making of the endorsement on the same, at and under date of the third day of June, 1871, at the instance of the plaintiffs, then their verdict should be for the defendant.

10. If the jury shall find from the evidence in the cause that the plaintiffs furnished to George W. Pole, the treasurer of the defendant, on or about the 15th of July, 1871, as part of the proofs of loss, the paper in the handwriting of the plaintiff, Thomas Deford, on which occurs the words following: "Hides and leather, stock in tannery, 56,500 dollars, belonging to Deford & Co.," and that the plaintiffs knowingly stated in the said paper a greater amount of stock as being on hand at the tannery, at the time of the fire, than was then actually there, and that said statement was not honestly believed by the plaintiffs or the said Deford to be correct, then their verdict must be for the defendant, although they should think that the loss of the plaintiffs on building and stock exceeded the insurance on the same.

The defendant offered an eleventh prayer which was rejected by the Court, but it does not appear in the record. The...