65 Wis. 585 | Wis. | 1886
This suit ivas brought by the respondents to recover a certain proportion of the loss by fire of certain property insured by the appellant company, and which same property was insured by certain other companies. There were divers defenses, among which were that the insured had misrepresented the amount of property in the place where it was insured and burned, in procuring the insurance and in the proofs of loss; and in connection with this defense the defendant, in its answer, made this allegation: “The defendant denies that said plaintiffs, by the fire in question, sustained an actual loss exceeding the sum of four
It was denied in the answer that the notice of the loss required to be given was ever given, and that any statement and account thereof was ever given in the time prescribed in the policy. It was therefore incumbent upon the plaintiffs to prove that what are called “ proofs of loss ” were made and delivered to the company, and in the time required. This, at least, was treated as an issue in the case, and the plaintiffs therefore offered a copy of the proofs of loss in evidence without objection, and followed it with proof that the original had been received by the company in proper time. Thereupon the plaintiffs rested their case, and moved the court to direct the jury to render said verdict, and the defendant made a oounter-motion that the court enter a nonsuit in the action. There were no particular grounds
The deficiency of the evidence, if any, consisted of the absence of all proof before the jury of the plaintiffs’.loss and the amount and particulars thereof. The motion for nonsuit was denied, and the motion to direct the verdict was allowed, and the jury were ordered to return said verdict, presumably on the ground that the copy of the proofs of loss so introduced in evidence without objection was sufficient proof of the loss and the amount thereof. The contention on the part of the respondents now is that such' evidence was sufficient; and on the part of appellant company (1) that the copy of the proofs of loss so introduced was only for the purpose of showing a compliance by the plaintiffs with the terms of the policy in making out and delivering proofs of loss within a certain time after the fire as a condition precedent to a recovery, and for no other purpose, and was therefore not objected to; and (2) that such copy so introduced, or the proofs of loss themselves, being ex parte, and the mere statement of the loss and its amount by the plaintiffs themselves, never assented to, but always repudiated and denied by the company, were irrelevant, immaterial, and incompetent as proof on the trial of such loss or the amount thereof, and that the court should have so ruled on the motion for a nonsuit. It is contended further, by the learned counsel of the appellant, that the motion for a nonsuit necessarily on that ground, was equivalent to an objection made in time to said copy being received in evidence as proof of the loss in fact on the trial, or for any other purpose than to show the performance of such condition precedent by the plaintiffs.
We will not so hold, as a question of practice, in this
There may be some warrant and excuse for its application in this case in the circuit court, by the case of Bonner v. Home Ins. Co. 13 Wis. 677, although in that case the copy of the proofs of loss was objected to when offered, and it was held that the objection should have been specific as to any other facts than as proof of the performance of a condition of the policy. But the rule laid down in that case has been substantially overruled by this court in Mead v. Hein, 28 Wis. 533. In that case a deed was offered for a specific purpose, and because not objected to, except by a general objection, it was afterwards claimed that it should be considered in evidence to prove the value of the lots by-the consideration named in it, — • an entirely different purpose,— and it was held that it was irrelevant and incompetent proof of such fact, and therefore not to be treated as in evidence for such purpose. The question was so decided in that case without reference to Bonner v. Home Ins. Co. supra, it is true, but afterwards Mr. Justice LyoN appended to the case a note in explanation, but the decision was, nevertheless, allowed to stand as an- authoritative one of the question. If the learned counsel of the respondents, or the court, had consulted that case, the rule would probably not have been applied in this case. The true limitation of the rule is suggested in the above-mentioned note, and that is, when any matter of evidence is offered, and no objection, or a mere general objection, is made, it is to be evidence, if received, for all purposes for which it is relevant and competent, but no further. Suppose, in a notice to quit served by a landlord as condition precedent to commence proceed
The proofs of loss are made to apprise the insurance company of the facts, and enable the adjusters of the company to pay without suit, or to examine into the particulars in order to determine whether they will do so. It is, after all, a mere claim asserted by the insured, and no more competent as evidence in court of the facts claimed by him therein to be true than the oral or written claim of any other party before suit. The rule is too preposterous for argument. Hincken v. Mut. B. L. Ins. Co. 50 N. Y. 657, is not in point in support of the rule. The objection there was that the proofs of loss were not shown to have been delivered to the company; but the court held the testimony of a witness that he delivered proofs of loss to the company, without objection, was proof sufficient. The case of Moore v. Protection Ins. Co. 29 Me. 97, is in point, but rests on no authority and very poor reasons. Jones v. Brooklyn L. Ins. Co. 61 N. Y. 79, is not in point, and so as to the case of Bradford v. Barclay, 42 Ala. 375. In N. A. Fire Ins. Co. v. Zaenger, 63 Ill. 464, the plaintiff introduced his own proofs of loss without limiting the offer, and they contained an admission in favor of the company that the premises had become vacant three weeks before the loss. The court properly held the plaintiff bound by the admission. These are the cases cited by the learned counsel of the respondents
On the other hand, in Knickerbocker Ins. Co. v. Gould, 80 Ill. 388, it was held that the admission of proofs of loss against a general objection must be limited to the purpose of establishing the fact that such proofs were made and delivered to the company as required by the terms of the policy, and that they were not evidence of the amount of the loss. In Lycoming F. Ins. Co. v. Rubin, 19 Ill. 408, it was held error to allow the proofs of loss to go to the jury as proof of the loss on the trial. Citizens’ Ins. Co. v. Doll, 35 Md. 89, is to the same effect. In Comm. Ins. Co. v. Sennett, 41 Pa. St. 161, it was correctly held that the introduction of the proofs of loss as a condition precedent was to the court, and not to the jury, and that, therefore, their submission to the jury as evidence of the loss was error, although without objection. In Newton v. Mut. Ben. L. Ins. Co. 2 Dill. 154, it was held that the affidavits, as proof of the death of the person whose life was insured, furnished to the company could not be used in evidence of a controverted fact on the trial, although received in evidence after a general objection. In Newmark v. L. & L. Fire Ins. Co. 30 Mo. 160, the proofs of loss were offered and received without objection, and the court instructed the jury that they were not evidence of any of the facts stated in them. The supreme court held this instruction proper, saying that “ the affidavit required to be appended to every petition might as well be regarded as proof of the truth of its allegations. The contrary decision of Moore v. Protection Ins. Co. 29 Me. 97, seems to have no support in princijile or upon authority.” This would seem to be sufficient to set this question at rest.
In the absence of all proof of the loss and its amount,
By the Court.— The judgment is reversed, and the cause remanded for a new trial.