Turley v. North American Fire Insurance — 25 Wend. 374

Majority

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Turley vs. The North American Fire Insurance Company.

Headnote

The clause in a policy of insurance, requiring the certificate of a magistrate or notary, as to the character and circumstances of the assured and the amount of the loss, does not require a strict literal compliance, more than any ordinary contract.

In determining the contiguity of the magistrate to the place of the fire, the place of his business, and not his residence, will be regarded; and a nice calculation of distances will not bo gone into to ascertain the nearest magistrate who might have given the certificate; the proximity of the magistrate to the place of the fire is all that can be required.

If the certificate of the magistrate be defective, the insurer will not be allowed to in. sist upon its insufficiency, if he has refused to return it to the assured for*the pur- [ *37f> ] pose of being corrected. It is the duty of the insurer not only in such case to return the preliminary proofs but to point out what ho deems defects. - «

It seems that the magistrate may certify to the character and circumstances of the assured, though his knowledge upon the subject be derived wholly from inquiry and proof submitted to him.

This was an action on a policy of insurance tried at the Albany circuit in April, 1840, before the Hon. John P. Cushman, one of the circuit judges.

The plaintiff being a cabinet-maker, was insured by the defendants against loss or damage by fire to the amount of $500, upon stock finished and unfinished, tools and lumber, contained in a building, and in a shed in rear thereof, on the east side of North Market street in the city of Albany, for the period of six months and twenty-four days from 10th October, 1837.

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On the 30th October, 1837, the buildings, with their contents, were consumed by fire. By the ninth condition referred to in the policy, persons sustaining loss or damage by fire, are required forthwith to give notice thereof in writing to the company, and as soon after as possible to deliver as particular an account of their loss and damage as the nature of the case will admit, signed with their own hands, accompanying the same with their oath or- affirmation, declaring the account to be true and just. They are also required to produce “ a certificate under the hand and seal of a magistrate or notary public most contiguous to the place of the fire and not concerned in the loss : stating that he has examined the circumstances attending the fire, loss or damage alleged; that he is acquainted with the character and circumstances of the insured claimant; and that he verily believes that he, she, or they have by misfortune, and without fraud or evil practice, sustained loss and damage on the subject insured, to the amount which the magistrate or notary public shall certify ; and until such proofs, declarations and certificates are produced, the loss shall not be payable.” On the 31st October, the assured gave notice of the loss, and on the seventh day of November served upon the agent of the company at AI-' bany an inventory of the property destroyed, amounting to upwards of $900, and an affidavit made by him stating the value of the property [ *376 ] (at the time of the insurance, *stated to have been $16,000, and at the time of the loss $1,200,) setting forth the circtmstances of the fire, and alleging the inventory to be just and true. The inventory was not signed by the assured. His affidavit was accompanied by affidavits of other persons, tending to verify the affidavit of the assured as to the property on hand at the time of the loss, and bearing testimony to his good character. Then followed the certificate of the Hon. Jacob Lansing, a judge of the Albany county courts, in which, after certifying that he had examined into the circumstances attending the loss, he proceeds as follows : “ and that I have been made acquainted by the foregoing affidavits and otherwise, with the character and circumstances of the within named James H. Turley, the insured, also within mentioned ; and that I verily believe from the foregoing affidavits, that he has, by misfortune, and without fraud or evil practice, sustained loss and damage on the property insured to the amount of the inventory hereto annexed.” On the twentieth day of November the agent of the company served upon the assured a notice that the company excepted to the sufficiency of the preliminary proofs, specifying sundry particulars in which they were deemed exceptionable, and amongst others, that the inventory was not signed by the assured ; that the certificate of Judge Lansing was not sufficient; and that the company required the certificate of a magistrate or notary public most contiguous to the place of the fire. The v assured thereupon repeatedly called upon the agent to return to him the pre

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urinary proofs that they might be amended ; but the agent refused to return them. On the sixth day of December the assured served a further affidavit of a third person, verifying the affidavit and inventory of the assured. On the trial of the cause after the execution of the policy was proved, it was shown on the part of the defendants, that Judge Lansing, who granted the certificate, was «oí the magistrate most contiguous to the place of the fire', that he resided three or four blocks north, and his office or place of business was two or three blocks south of the .place of the fire, though it was conceded that he daily passed the place in going from his dwelling to his office ; that an alderman of the city lived directly across the street from the *place of the fire, and a notary public [ *377 ] resided within a block and a half of the place. On this evidence the defendants objected to the sufficiency of the preliminary proofs; which objection was overruled by the circuit judge. The plaintiff then adduced proof of his loss, and the jury found a verdict in his favor for $425. The defendants, on a bill exceptions, moved for a new trial.

J. Holmes, for the defendants,

insisted that the preliminary proofs were totally insufficient; that the magistrate who had granted the certificate was not the magistrate most contiguous to the place of the fire ; and if his certificate could be received, it did not comply with the terms of the condition annexed to the policy.

R. W. Peckham, for the plaintiff.

By the Court,

The only question important to notice in this case, is, whether the certificate of the magistrate furnished to the defendants was a sufficient compliance with the 9th condition of the policy. It is urged 1st, that the magistrate was not the most contiguous to the place of the fire ; and 2d, that the certificate is bad in point of form.

This clause of the contract of insurance is to receive a reasonable interpretation ; its intent and substance, as derived from the language used, should be regarded. There is no more reason for claiming a strict literal compliance with its terms than in ordinary contracts. Full legal effect should always be given to it, for the purpose of guarding the company against fraud or imposition. Beyond this, we would be sacrificing substance to form—following words rather than ideas.

The magistrate, it appears, resided some three or four blocks north of the place of the fire, and kept his office, or place of business, two or three blocks south; usually passing it several times daily. A case can scarcely be imagined where the locality of the officer would afford a better opportunity to acquire a knowledge of the facts to which the certificate relates An alderman of the city resided across the street, and nearer the fire than

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[ *378 ] Judge Lansing ; but “whether nearer than his office, is not stated. The latter place may be regarded in ascertaining the magistrate most contiguous within the meaning of the condition. His business relations arising out of his official and professional pursuits, transacted there, will be presumed to afford the requisite information as far as locality is concerned. For all the purposes of the condition, it is the place most favorable to the company.

It seems the residence of a notary happens to be a few feet nearer the fire than the office of the Judge, and we are asked to go into nice calculation of distances, and settle the point upon the laws of mensuration. Be minimis, fc., is a sufficient answer to this objection. The spirit of the condition requires no such mathematical precision from the assured. Its. object is completely secured by the proximity of the certifying magistrate.

As to the form of the certificate. It is said that the magistrate does not certify that he is acquainted with the character and circumstances of the assured, &c. The certificate is not as particular in this respec t as is required by the terms of the condition ; and yet is as full as may be practicable in many cases. The magistrate “ most contiguous” may not always be personally acquainted with the character of the claimant, and must rely upon inquiry, and proof produced as in this case for the requisite knowledge. I prefer, however, placing the answer to the objection here, mainly, upon the refusal of the agent to show the preliminary proofs to the party when asking to see them with a view to their correction. It appears that he was repeatedly called upon for that purpose, and as often refused sight of them; It is true he had before transmitted written objections to these proofs ; but they were quite indefinite in respect to the certificate, and did not advise as to the particulars in which it fell short. No copy had been kept by the assured, and it was important, therefore, to examine the original with a view to a correction. Indeed, the agent when thus directly called upon, in fair-dealing, should not only have produced the papers, but pointed out the particulars in respect to which he considered them deficient. So [ *379 ] liberal is the practice of the offices in England, *says Mr. Ellis, (Ellis on Ins. G2,) that upon application after the fire, they usually furnish the assnred with the necessary information for proving the loss. It certainly becomes all at least to throw no embarrassments in the way ; and surely there should be no contrivance to mislead the claimant when he is honestly endeavoring to comply with the conditions. . .

New trial denied.