8 Rob. 442 | La. | 1844
This is an action on a policy of insurance against fire, to the amount of $>4000, “on stock in trade, consisting of looking glasses, frames and plates, clocks and jewelry, &c.” in a store in Bienville street in this city. The policy is in the usual form, with the usual conditions and hazards on it. The plaintiff alleges, that on the night of the 19th of April, 1841, the store in which his goods were contained was burned, and
The ninth clause of the policy says, that “all persons assured by this company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the company, and as soon as possible, to deliver in a particular account of such loss or damage, signed with their own hands, and verified by their oath or affirmation; and also, if required, by their books of accounts and other proper vouchers. They shall also declare on oath, whether any, and what other insurance has been made on the same property, and until such proofs and declarations are produced, the loss shall not be payable. Also if there appear any fraud or false swearing, the claimant shall forfeit all claim by virtue of this policy.”
The evidence shows, that in the month of November, 1839, the plaintiff and two other persons or firms, occupied a store in Water street in New York. He was engaged in the business of
In the month of January or February, 1840, the plaintiff came to New Orleans, with a quantity of looking glass plates and frames, clocks, and other articles, for sale. He rented the first loft of a store in Chartres street of Felt & Co., who occupied the first floor as a store, and used the upper lofts for a printing office. He took out a policy against fire, for two months, for about $6000, in the Commercial Insurance Company, on his stock in trade. A fire broke out in this store, in March, 1840, in the loft occupied by the plaintiff; but it is proved that it was in the night, and that the plaintiff had no key to the store that was known, he leaving every evening before the store on the ground floor was closed, and not returning until it was opened in the morning, and being obliged to pass through the lower store to get to where his wares were stored. A witness was examined, who was in this house when it was burned. He had the key, and, a short time before he discovered the fire, had been- below to light a lamp or candle. He says that he heard some one on the steps and in the plaintiff’s room below him, but he did not go to see who it was, although he knew he had, a short time before, closed the doors of the store, and had the key in his pocket, and no one slept in the plaintiff’s store. The account given by this witness is rather loose and extraordinary, as, from it, the fire had progressed so much before he discovered it, although awake, that he was un
In the month of November, 1840, the plaintiff again brought from New York to this city, an assortment of looking glass plates and frames, clocks, and other articles, invoiced to nearly $11,000. He rented the store No. 11 Bienville street for one year, which was a large establishment, and not having use for the whole of it, he sub-leased a part of it to one Newcomb, a furniture dealer, to Treadwell, a commission merchant; and one Mclntire, a cabinet maker, slept in the house, and assisted Newcomb in his business. The plaintiff took out the policy sued on. Treadwell had a policy for $4000, in the defendants’ office, on his goods. New-comb had one for $14,500, and Mclntire had one on his tools, &c., for $200 ; and other persons in adjoining stores had policies to the amount of more than $18,000, all of which were settled by the defendants without suit, so far as we are informed. During the winter, the plaintiff received some other goods from his establishment in New York, and from his correspondents, and sold a great portion of them. In the month of April he proposed to return to the North, and spoke of leaving on different days, but did not do so. He had finally fixed on the 20th of April as the day of his departure, and agreed with the witness, Newcomb, that they should meet that morning to make an inventory of the goods, which he proposed to leave in his charge. The fire occurred about nine o’clock, on the night of the 19th of April, 1841. The evidence shows conclusively, that on that evening, the plaintiff left the store about half-past six o’clock, P. M. in company with two persons; he went with them to Canal street, where one left him; with the other he went to the National Hotel, where he boarded. After tea, the two descended to
In this court, the counsel for the defendants insist, that the plaintiff cannot recover, as the preliminary proof was not sufficient, and was not presented in due time. The same ground was taken in the court below; but, as it was not pleaded specially, the judge passed it over without particular notice. The answer denies, in general terms, that the plaintiff has complied with the conditions, and made proof as required by the ninth condition of the policy, sustained by proper vouchers. The clause in a policy that requires preliminary proof is always construed liberally. It is made for the purpose of satisfying the assurer that a loss has been sustained, and the proof is not expected to be strictly such as would be received in a suit pending, but such as will satisfy a reasonable mind of the correctness of the demand. Notice must be given according to the policy, and must be within a reasonable time. 7 Cowen, 645. S. C. 6 Prac. Abridgment Am. Cases, 210. 2 Phillips on Ins. 515. Although the policy stipulates that the notice shall be given “ forthwith,” we do not understand that to mean in an hour, or in any other very brief space of time, but without unnecessary delay. 12 Wendell, 452. And the giving notice of a loss is a different matter from making the preliminary proof, whieh may be subsequently presented, and generally requires some time to prepare. In this case it is stated, that the notice was given “ immediately,” and the proofs presented nineteen days after the fire. No objection was made by the company, as to the notice, or delay in presenting the preliminary proof at • the time, which goes far to show, that the defendants did not then consider the delay unreasonable; but they said that the loss would not be paid. We have once said, that the notice and proof required is somewhat in the nature of an amicable demand; and that to put a parly upon strict proof of it, he should be called upon to do so by the pleadings. We are not prepared to say, that a delay of nineteen days for the purpose of preparing the
The counsel for the defendants insist strongly that, as one clause of the ninth condition in the policy says, that the account of loss shall be sustained “ if required by their books of accounts and other vouchers,” that there is an implied warranty on the part of the plaintiff to keep books of account, and to be ready to exhibit them when called upon. As to the above clause creating a warranty, we are not disposed to assent to it; and, if it were so regarded, many policies would be avoided, both on marine and fire risks, as many who insure keep no books at all, their business not making it necessary. Warranties and special conditions in policies of insurance, as a general rule, must be strictly complied with ; and we do not feel authorized to extend them by implication, as cases may often arise in which it would be difficult if not impossible, to comply with them. The case before us, is an example. The plaintiff had, for several years previous to this transaction, been engaged in business in New York where he had a manufacturing establishment and a store. He had a clerk in his employ, and there kept his books. It was his practice to make an adventure each winter by shipping various articles to New Orleans, and coming with them himself, to sell for cash. It is not shown that he dealt on credit at all. He had his invoice, so as to know the prices his goods cost him, and, with that knowledge, he could sell them on such terms as he thought proper, and by examination ascertain what quantity he had on hand at any time. The fact is, that the plaintiff did keep a small book, not in a very regular manner, in which was put down the quantity and value of the goods he brought with him to New Orleans, in November, 1840, and received afterwards; also the amount of
The next ground of defence is, that the amount of loss is not proved by sufficient testimony. That is a question we shall not examine now, but will refer to the doctrine laid down in the case of Marchesseau v. The Merchants Insurance Company, (1 Robinson, 441, 442,) as to the evidence to show a loss, under an open policy of insurance.
Another ground of defence is, that the plaintiff was the cause of the loss, and the judge below seems to have been of that opinion. In coming to that conclusion, it seems to us, that the judge has assumed as facts, what we cannot consider as proved. He seems to take it, almost as granted, that the plaintiff set fire to his store in New York, in November, 1839, and again to the one in Chartres street in the spring of 1840. He also assumes, that he had a key to the store in Bienville street, at the time of the fire, in 1841. Of these facts, we see no sufficient evidence in the record. It is certainly very remarkable, that the plaintiff should have had his goods burned three times in about eighteen months ; yet we cannot say, that that of itself is a sufficient reason to say, that he was the cause of the fires.
The counsel for the defendants contend, that in a case of this kind, they are not bound to produce such evidence as would convict the plaintiff’of the crime of arson, if he were on trial for that offence. This we admit to be true; but we cannot assent to the other part of their proposition, that it is sufficient to raise suspicions of guilt, and thereby annul the 'policy, unless the plaintiff can establish his innocence. If the defendants can establish such circumstances as will, according to the established rules of our jurisprudence, fix a fraud upon the plaintiff, it will, in our opinion, annul the policy. With the views and intentions we now have in relation to the case, we will not go into an analysis of
It is, therefore, ordered and decreed, that the judgment of the Commercial Court be annulled and reversed, and this case remanded for a new trial, with directions to the judge to conform in in the trial thereof, to the principles herein stated, and otherwise proceed according to law; the appellees paying the costs of the appeal.