Robinson v. Palatine Ins. Co.

• Decision Date: 02 October 1901
• Citation: 11 N.M. 162,66 P. 535
• Parties: ROBINSONv.PALATINE INS. CO., Limited, OF MANCHESTER, ENGLAND.
• Court: New Mexico Supreme Court

11 N.M. 162

66 P. 535

ROBINSON

v.PALATINE INS. CO., Limited, OF MANCHESTER, ENGLAND.

Supreme Court of the Territory of New Mexico.

Oct. 2, 1901.

Syllabus by the Court.

1. A substantial compliance with the terms of a fire insurance policy as to notice and proof of loss is all that is required, and when notice of the loss is given, even if it is not sworn to, and an adjuster is sent to investigate the loss, unless a verification or further information is demanded, the objection that the notice of loss is not verified is waived.

2. A judgment will not be reversed where the evidence as to the value of the property destroyed by fire is conflicting, unless it clearly appears from the evidence that the judgment is for a sum in excess of that shown by the evidence. This court will not pass on the weight of the evidence, as that duty devolves upon the jury.

3. The right to submit questions of fact to be answered by the jury at the same time they return their general verdict is given by statute in this territory, but as to what the questions may be rests in the sound discretion of the court, and the court is not required to submit improper questions to the jury because one of the parties to the cause requests it. If the court submits questions to the jury, it can withdraw them, if it sees fit, from their consideration; and if the jury return a general verdict ignoring the questions, and the judge accepts the verdict as returned and discharges the jury, it is the same as though the court had refused to submit them in the first instance.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by T. P. Robinson against the Palatine Insurance Company, Limited, of Manchester, England. Judgment for plaintiff, and defendant appeals. Affirmed.

This is a suit brought to recover on a fire insurance policy. The complaint is in the ordinary form, and sets forth that the insurance company issued a policy for the sum of $3,000, on the 24th day of September, 1895, having one year to run, on a building situated in Gallup, N. M., and that on August 15, 1896, said building was totally destroyed by fire. The complaint further alleges that the appellee had performed all and every act required to be done by him, both before and after the fire, but that the insurance company refused to adjust the loss, or to pay the same, or any part thereof. A copy of the policy of insurance was filed with the complaint. In course of time the defendant company filed an answer, containing the following defenses, to wit: (1) The general issue; (2) that the building was not worth the amount for which it was insured; (3) that under the policy the liability was avoided because the building was left unoccupied for 10 days without permission being indorsed on the policy; (4) because the insured did not within 60 days after the fire give a sworn statement to the company as to the origin of the fire, etc.; (5) because the insured misrepresented the value of the building; and (6) because the fire which destroyed the building was by the direct procurement and act of the insured. After various motions, demurrers, etc., had been passed upon, issue was finally joined, and the cause was tried before a jury, which on April 30, 1900, returned a verdict in favor of T. P. Robinson for the sum of $1,900, and interest from October 16, 1896. Defendant appealed.

Where the court submits questions to the jury, it can withdraw them, and if the jury return a general verdict, ignoring the questions, and the judge accepts the verdict as returned, and discharges the jury, it is the same as if the court had refused to submit them in the first instance.

B. F. Adams, for appellant.

Bernard S. Rodey, for appellee.

MILLS, C. J.(after stating the facts).

Fifty-seven grounds of error are assigned in this cause, and, as is usually the case when the assignments are so numerous, it will not be necessary to discuss them all. It will perhaps be proper for us, in view of the very many assignments, to call the attention of the members of the bar to what the supreme court of the United States say in regard to making so many assignments of error: “Other errors are assigned, which it is unnecessary to notice in detail. Most of them are covered by those already discussed, and some of them are so obviously frivolous as to require no discussion. It is to be regretted that defendants found it necessary to multiply their assignments to such an extent, as there is always a possibility that, in the very abundance of alleged errors, a substantial one may be lost sight of. This is a comment which courts have frequent occasion to make, and one which is too frequently disregarded by the profession.” Grayson v. Lynch, 163 U. S. 468, 16 Sup. Ct. 1064, 41 L. Ed. 230. We have fully considered all of the errors assigned, and, while we do not deem it necessary to refer in this opinion to each of them separately, we have endeavored to cover all of them which we deem to be material to a proper determination of this case, although, as we have just quoted, “in the very abundance of alleged errors a substantial one may be lost sight of.” We trust, however, that such is not the case. The policy sued on is what is known in insurance circles as a “New York Standard Form Policy.”

1. Some six or seven of the assignments relate to an alleged variance between the declaration and the proofs; the declaration alleging that the insured had “done and performed all and every act and thing upon his part required to be done, *** both precedent and subsequent to the occurrence of said fire.” This the defendant below denies in its answer, and alleges that the liability was avoided because the building was left unoccupied for 10 days without permission being indorsed on the policy, and also because the insured did not within 60 days after the fire give a sworn statement to the company as to the origin of the fire, etc. In his replication appellee denies that the building was vacant for 10 days, and avers that he did give the defendant a verified statement of his loss. Among the allegations required in a complaint on a policy of insurance are an insurable interest in the insured in the property destroyed; consideration and issuance of the policy; a loss within the terms of the contract, and the amount thereof; performance of the conditions of the policy; and a breach of the contract on the part of the insurer. 11 Enc. P1. & Prac. p. 411, and cases cited under note 1, p. 412. The plaintiff, however, need not negative the performance of the condition subsequent to the loss to entitle him to recover. All that is necessary for a plaintiff to do in declaring on a contract of insurance is to set forth so much of it as will show a right to recover. Whittle v. Insurance Co. (R. I.) 38 Atl. 498; 2 May, Ins. § 589; 2 Greenl. Ev. (13th Ed.) § 376. It follows, therefore, that the various conditions and stipulations of a policy which are in the nature of conditions subsequent, and go to defeat the liability of the insurer, are matters of defense, and have no place in the declaration. Lounsbury v. Insurance Co., 8 Conn. 459, 21 Am. Dec. 686.

It is in evidence that on the same or the next day after the fire occurred the appellee, who was the agent of the defendant company at Gallup, notified the manager of the insurance company at San Francisco of the loss, stated that it was total, and that the origin of the fire was unknown, and that on the 19th day of August the manager of the company wrote Dr. Robinson that he had received the loss advice, and that he had immediately wired a special agent and adjuster of the company, and that said adjuster went to Gallup to investigate the loss, and that on the 25th day of August, 1896, an agreement was signed that the adjuster should proceed to investigate and ascertain the loss and adjust the same. The evidence further shows that the adjuster would not adjust the loss, but refused to do so, and that the company would not pay for any loss, but denied all liability. The instruction given by the court covers this point, in our opinion, correctly. It was as follows: “For a further defense, the defendants plead in the fourth paragraph of their answer that one of the provisions of the policy is that within 60 days after the fire the defendant or the assured must have furnished the defendant with proofs of loss. The court instructs you that if you find from the evidence that shortly after the time of the loss, and within sixty days thereafter, the plaintiff notified the defendant company, the Palatine Insurance Company, on blanks furnished to him for that purpose, that the fire had occurred, and that in pursuance to said notice the defendant company sent their special agent and adjuster or investigator to adjust or investigate the claim of loss, and investigations were then taken up by such employé or agent of the company, that such fact is a sufficient notice to bind the defendant company, and the plaintiff would be entitled to recover under his contract, if from all the other facts and circumstances in evidence in the case you conclude, from a fair preponderance of the evidence, that plaintiff is entitled to recover at all. However, if the jury find that this provision of the contract had been violated by the plaintiff, they will find the issues for the defendant.”

The evidence shows that notice of the loss was sent to the appellant, and that pursuant to such notice they sent...