24 Mo. App. 145 | Mo. Ct. App. | 1887
This is an action on a policy of insurance covering a stock of millinery goods and some fixtures necessary to said stock. The plaintiff prevailed below and defendant appeals. -
The policy contained, among other conditions, the following: .
“ Persons sustaining loss or damage by fire shall forthwith give notice of said loss, in writing, to the company, and, as soon thereafter as possible, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interests therein, for what purpose and by whom the building insured, or containing the property insured, and the several parts thereof, -were used at the time of the loss, when and how the fire originated; and shall also produce a certificate under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor relatéd to the assured), stating that he has examined the circumstances attending the loss, knows the character and cii’cumstances of
The fire occurred on July 10, 1883, and plaintiff, on July 23, 1883, sent to the defendant a proof of loss, purporting to render a particular account of such loss, as required by the conditions above set out. This proof was offered in evidence and was admitted over the following objections of defendant:
1. Because said paper does not specify the policy under which the claim is made.
2. It does not contain a copy of the written part of the policy under which the claim is made.
3. It does not state the items nor give as particular an account of the loss as the nature of the case will admit, or as the company has the right to require under the terms and conditions of the policy read in evidence.
4. It does not state to whom the specific property belonged at the time of the fire, nor the interest of the insured therein.
5. It does not state whether any, and if any, what other insurance had been made on the same property, nor give copies of written portion of all policies, if any, concerning the same property.
6. It does not specify the time of .the fire by which the property insured was damaged or destroyed.
7. It does not give or state the actual cash value of each specific subject of insurance at the time of the fire, nor does it give or state the actual loss, or damage, for which the claim is made in the aggregate, under each specific subject of insurance, nor does it state the amount of loss or damage claimed from such company under each specific subject of insurance.
8. The certificate of the magistrate attached to said document is incomplete, in that it fails to state that he is or was the nearest magistrate to the place of the fire, and is not related to the assured nor interested in the claim.
The third objection depends upon the facts and circumstances of each particular case. It may be the account rendered was as particular ■ as possible under the circumstances surrounding plaintiff! at the time. The fire may have left plaintiff without sufficient memoranda for a more specific statement. The fifth objection was not well taken. The proof does state there was other insurance in the Phcenix Company, of Hartford, Connecticut, and it does set out the written portion thereof. It was not necessary, for the proof to proceed further and affirmatively state there was no other insurance than that named. After naming other insurance, as required by the policy, it need not state that was all, for such, would be the presumption so far as concerns the sufficiency of the proof on its face.
As regards the eighth objection, while I am of the opinion that the magistrate or notary must not be of kin to the assured nor interested in the claim, yet it is not necessary to the legality or sufficiency of the proof, that this should appear upon its face.
The fourth and sixth objections were well'taken and for the reasons therein stated the proof should have been rejected.
There is no statement in the first proof as to whom the property belonged, nor the interest of the assured therein ; nor does it state the time of the fire. The conditions of the policy requiring this are reasonable and should be specifically complied with, unless waived by the insurer. Wood on Fire Insurance, sects. 411, 415.
The seventh objection would, like the third, depend much on the facts of each particular case, and we cannot say that it was insufficient.
The second proof of loss was of itself sufficiently
We find no substantial objection to the action of the court on the question of instructions, and have only to consider whether the admission in evidence of the first proof of loss was such an error as will justify us in reversing the judgment and remanding the cause. The statute, section 3775, says we shall not reverse the judgment of any court unless we shall believe that error was committed materially affecting the merits of the action. The second proof being in all respects a sufficient compliance with the policy, we are not able to perceive any harm resulting to defendant by the admission of the first proof.
Defendant’s case was forcibly presented attheargu