Summerfield v. Phoenix Assur. Co.

65 F. 292 | U.S. Circuit Court for the District of Western Virginia | 1894

HUGHES, District Judge

(after stating the facts). This is a case of total loss. The property burned was completely destroyed. It had been insured for a total sum of $22,500, and it was worth, at minimum valuation, $80,000. In such a case, and in the absence of any charge of perjury, fraud, or incendiarism, the policy itself would seem to liquidate the amount of loss to be recovered, and to render unnecessary such formal and technical proofs of loss as the policy prescribes, with reference necessarily to cases of partial loss. Policies of the character of the one now under consideration contain numerous important and valuable stipulations, all applicable to cases of partial loss, all binding upon and enforceable between the parties to them, but, so far as they are intended to ascertain the amount of loss, useless and immaterial in cases of total loss. In this latter class of cases to require the observance of such formalities would seem to be unreasonable, and in contravention of the maxim, “Lex neminem cogit ad vana sen inutilia peragenda” (“The law compels no one to do useless things”). In cases of total loss, where the value destroyed exceeds indisputably the amount of insurance,' the policy liquidates the amount, res ipsa loquitur, and dispenses in general with affirmative and formal proofs of loss. But in the present case we have a wTitten contract, and that document requires formal proofs from all persons sustaining losses of every character under it. That contract is binding upon the insured, and she must comply with its stipulations, however iechnical and perfunctory they may be. The pleadings show that the defendant company refused payment of the loss in this case on five several grounds. At the trial, and in the briefs, however, only two of these grounds were relied on, and it is only these two that need to be examined in tbis opinion. One of tbem relates exclusively to tbe proofs of loss. This ground of defense is that a duly-verified builder’s certificate of the cash value of the burned premises just before the fire was not furnished, in compliance with the requirements of the policy. The other ground of defense is that the builder’s risk clause of the policy was violated when a workman took off two pieces of hand railing from the staircase in the lower room of the hotel on the afternoon before tbe night of the fire, and was intrasted with the key of that room. This objection is urged in connection with the clause of the policy described in paragraph numbered o in the above statement of the facts, relating to an increase of risk. These two objections will be examined severally. In respect to both objections the case turns wholly on facts; it presents no disputable question of Law.

As to the builder’s cert ificate of loss: The question presented is whether the “estimate” of Graham & Bro., dated on the 24th April, and signed by them professionally, giving an itemized account of what the cost of rebuilding anew would be, and furnished the defendant on April 26th, fulfilled the requirements of the policy as sel> out in the paragraph numbered 2 in the above statement of facts. The defendant contends that this paper was not such a certificate as the policy required, and that it was not furnished in time; that is to say, was not furnished within 30 days after the fire. The policy, in the clause set out in the paragraph numbered 3 of the above statement of facts, indicates that, the cash value of the premises before the fire may he established by estimating the cost of rebuilding anew, and deducting from the estimate the pi'obable deterioration suffered by the premises from previous use. Such a paper, suggested probably by this provision of the policy, prepared by Graham & Bro. as" architects and builders, and signed by them professionally, was furnished by the plaintiff on the 26th of April, and was then made a part of her preliminary proofs of loss. The relation of that paper to the present litigation is this: It was furnished by the plaintiff as her statement of the amount of her loss, and it was verified by the signature of Graham & Bro. as builders, and upon their professional responsibility and reputation. I do not think the phrase “duly verified,” as used in the policy, necessarily requires an attestation by affidavit. In the clause next preceding that in which this certificate is required, papers there mentioned are required to be sworn to, but an express requirement is omitted in regard to this paper. It is true that the term “verify” .applied to legal papers generally means, or implies, an oath; but it is equally time that it does not always, or necessarily, do so. Affidavits are usually made to facts, not to opinions; to actual expenditures, not to estimates of them. It would have been anomalous for this policy to have required affidavit to a certificate merely conjectural on its face. In the case at bar I think that when the plaintiff furnished an estimate of the cost of rebuilding her premises anew, verified by the names of Graham & Bro., and signed as builders, in their professional character, the paper conformed, as to its verification, to the requirements of the policy, and was a “duly-verified certificate.” As to whether this paper ought not to have contained an item estimating the deterioration of the building from the use it had undergone before the fire: There is no requirement of such an item in the policy, and the deterioration seems to me to be too intangible a thing to admit of any but the most vague and conjectural valuation. It is not such a matter as a builder can consider as an expert, nor a proper subject for professional estimate. It belongs to that class of subjects which can best be dealt with by negotiation between fair-minded parties in interest. I think the builders acted properly in leaving the vague and intangible item of deterioration, which did not fail within their duties as experts, to negotiation between the parties to the contract of insurance. '

It is further objected that, even if this were a valid paper, it was not furnished and made part of the preliminary proofs within 30 days after the fire. The policy' requires that the preliminary proofs shall be furnished within 30 days, and it also requires that the builder’s certificate of the cash value of the premises burned shall be attached to and made a part of the preliminary proofs, but it significantly omits to require that such attaching and making part shall be done within 30 days. The 30-days requirement is in one clause of the policy, and embraces a category of things that are directed to be done within 30 days. The builder’s certificate of cash valuation is in another clause, containing no 30-day requirement, and is put into a category of things which are expressly not required to be done, and some of which could not be conveniently done, within 30 days. All the rules of construction forbid that, in such a case, an inference and implication should be raised for the purpose of working a forfeiture. On the subject of this builder’s certificate, I hold that the estimate of Graham & Bro. was such a certificate as satisfied the requirement of the policy; that it was duly verified; and that, having been furnished and made part of the preliminary proofs on the 26th of April, it was in time, the policy not requiring the attaching and making of it part of the proofs to be done within 30 days.

I come, therefore, to the second and more important contention of the defense, viz. that the work, or “working,” which was done on the staircase, and the custody of the key of the room containing the staircase, vitiated the policy. It was not shown at the trial, and it is not contended in the briefs, that the fire which consumed the building originated in the room embracing the staircase, or was actually due to the negligence, or any act, of the workman who has been mentioned. No connection whatever was shown to have existed between the fire and this workman and his work on the staircase. The question, therefore, is simply this: Whether this policy was vitiated by the mere fact that a single workman took off two pieces of the hand rail of the staircase, and had custody of the key of the room in which the staircase was when the fire occurred. Insurers are the draughtsmen of their printed policies. They frame them with the primary object of protecting their own interests, and they do this with the skill of experts. The insured are not in their counsels when these instruments are framed, and know nothing of the language employed in them until the time of contracting comes. They are not experts. They have little,, if any, experience of the practical effect of the forms of language employed in the policies. For these and other reasons it has become well-settled law that policies of insurance containing in printed form numerous provisions of the sort embraced in the policy now under consideration must be construed strictly, and most strongly against the insurers. Evidently, the clause of this policy providing for a forfeiture in the event of the “working of carpenters” in altering this plaintiff’s building contemplated such work as would really alter the buildiug, and the working of carpenters, in such numbers of two or more, as would really produce the risk which it was the object of the policy to provide against. I cannot bring myself to believe that it would be a liberal or a just construction of this policy to hold that half an hour’s work upon an alteration that did not alter, by a solitary workman, was a practical violation of a clause of the policy making the working of two or more carpenters in altering the building a forfeiture of the insurance. No alteration was effected, and there was but one workman. To hold that this was a violation of the policy would be to construe this clause strictly against, the insured, rather than strictly against the insurer. I hold that there was no actual violation of this clause of the policy. As to the key, it was that of a room which was an inconsiderable part of the premises that were burned. It was of but one room, and the fire originated in a different and distant part of the premises. The mere possession of the key of one of probably more than a hundred rooms of a building was not such a change of custody of the building as was contemplated by the policy. I think this objection is not well taken, and must be overruled. Judgment must go for the plaintiff.