
    Jové v. The Palatine Insurance Company of London.
    Appeal from the District Court of San Juan.
    No. 85.
    Decided December 24, 1903.
    Fike Insitbance Policy. — The stipulations in a fire insurance policy are compacts which determine the rights and obligations of the respective contracting parties and, therefore, constitute the law that should be observed and complied with in questions arising between the underwriter and the insured.
    Evidence. — The testimony of witnesses given under oath, after citation of the adverse party, who failed to disprove said testimony at the trial, cannot be considered as null and void. . n
    
    STATEMENT OP THE CASE.
    This is a declaratory action prosecuted in the District Court of San Jnan by Lnis Jové y Torres, as plaintiff, represented in this Supreme Court by Antonio Alvarez Nava, against Messrs. Candía & Stubbe, General Agents of The Palatine Insurance Company of London, -as defendants, represented by their counsel, Juan Guzman Benitez, for a recovery on a fire insurance policy, which case is pending before us on appeal in cassation, now appeal, taken by aforesaid company, from the judgment rendered by said court, which copied reads as follows:
    “Judgment.- — In the city of San Juan, Porto Rico, November seventh, one thousand nine hundred and two. The hearing has been had in this declaratory action prosecuted by Luis Jové y Torres, of legal age, single, a merchant and resident of Arecibo, represented,'first by his counsel, Elpidio de los Santos y Laguardia, and afterwards by Antonio Alvarez Nava, as plaintiff, against Messrs Gandía & Stubbe, merchants and residents of this city, as general agents of The Palatine Fire Insurance Company, of London, defendants, represented by Juan de Guzman Benitez, for the collection of a policy.
    “Luis Jové Torres filed, together with a certificate to the effect that proceedings to avoid litigation had not been had owing to the nonappearance of the defendants, a complaint against the firm of Gandía & Stubbe, agents of The Palatine Fire Insurance Company of London, praying that judgment be rendered declaring that the fire occurring on the night of the 20th of October, 1900, was accidental, and the damages caused to the stock in the establishment were 'the necessary and immediate consequence of the measures adopted by the authorities and chief of the fire brigade, for the purpose, not only of extinguishing the fire in the building occupied in part by the burning store, but to cut it off from the greater part of the surrounding houses; that the contract of insurance is valid, and Gandía & Stubbe, agents of the company, who wrote the insurance, are bound to pay the five hundred dollars for which the stock in the store was insured, with interest and costs, setting up as facts that Jové, the owner of a grocery store in Arecibo, insured the stock thereof, on the 24th of September, 1900, for one year, in aforesaid company, for the above-mentioned sum, which contract was made and perfected on the same day, he paying in advance the annual premium of ten dollars and five cents internal revenue; that said insurance covered all the stock of provisions, including rum and ■ petroleum of which he carried a small quantity; that on the night of October 20, a fire broke out in the store, due to the accidental fall of a lamp; that the police gave the alarm, and the firemen sought to localize the fire, for which purpose they threw out the articles from the shelves, while the authorities and chief fireman ordered the interior of the store to be flooded which resulted in a loss of stock greater than the amount insured; that Jové could do nothing to prevent these measures, and an investigation having been instituted, the fire was declared to have been accidental. Plaintiff cited articles 368, 380, 393 and 404 of the Code of Commerce.
    ‘ ‘ The complaint was accompanied by a certificate of the order of the municipal judge of Arecibo, quashing the proceedings that had been instituted with reference to the cause of the fire, and the original policy with a translation thereof. The complaint being admitted, the defendants, in their answer, prayed that the same be dismissed with costs, alleging the following facts: That the occurrence of October 20 had been simply an attempt of an incendiary character, and was easily controlled, with no damage to the store, from which the counter and a few empty drawers were removed, by flooding the floor and preventing such rubbish as might be under the house from taking fire, no article of importance having been injured; that there was not five hundred dollars worth of merchandise on the premises, defendants being required to make good losses that had not been sustained; for having gone to Arecibo, they had been informed by Jové that a large part of the stock had been stolen. .They denied the facts set forth in the complaint which disagreed with their statement, and declared that Jové did not keep any books; the law cited being articles 385, 390, 393, 396 and 404 to 406 of the Code of Commerce, and clause 12 of the policy. They further prayed that the clauses of the policy which had been omitted in the one presented, be translated, clause 12 whereof reads: ‘As soon as a fire occurs notice thereof must be given to the company or its agent,’ while clause 14 requires a detailed list of the losses, verified by the books, affidavits and documentary evidence tending to corroborate said list and values.
    “Upon the introduction of evidence, that of the plaintiff consisted of: 1. Confession in court of the agent of the company, F. D. Stubbe, to the effect that when the store of the plaintiff was insured it contained goods amounting to five hundred dollars, though he could not state whether or not there were more goods than those insured, his ■information having been received through the local agent, Arturo Diaz; that but for this information he would not have issued the policy; that as soon as .the fire occurred he was notified by his representative, Diaz, who was instructed to take charge of the key of the store; that he had not received from the plaintiff the invoices which he claims showed the excess of stock at the time of the fire, but after-wards another document with other signatures; that if the plaintiff had not had a larger stock than that insured he would not have written the insurance; that he had received from Jové through his agent, the invoices obtained from some of the merchants who had signed the document which was like the one marked ‘C,’ signed, by seven merchants who testified therein that from a mere glance at the stock in Jové’s store on the day of the fire and those immediately preceding it, they calculated that it contained five hundredd dollars worth of goods; and the payment of the insurance was withheld because a sum in excess of tbe stock bas been demanded. 2. Identification of tbe signatures of tbe aforesaid seven merchants, five of whom were such, tbe other two being industrial agents, who acknowledged their signatures affixed to said document, and declared that tbe statements therein were true. 3. Tbe notarial act. of November 21, 1900, wherein seven persons testified that they knew of their own knowledge that on the night of the fire in plaintiff’s store a great number of articles, such as lumber, cases, barrels and packages containing inflamable materials, had to be thrown out of doors; that the local authorities and firemen ordered the place tp be flooded and they calculated that the loss sustained amounted to five hundred and some odd dollars. And in that of February 27, 1901, fifteen witnesses testified that on the night of the fire the engine began to work shortly after it broke out, and continued until ten o’clock; that the stream of water was so powerful it could not but destroy most of the articles-; that part of the counter was consumed and under it there were three cans of kerosene oil; that the stock amounted to more than five hundred dollars; that the flames burst through the doors. 4. Eequisition to Gandía & Stubbe to present the invoices, which they did, as’ also the memorandum on the document from which one of the signers withdraws his signature, as appears from said memorandum. 5. Certificate of the clerk of the municipal court to the effect that no theft of goods during the fire had been reported.
    "The defendant introduced as evidence the inventory of stock in the store, signed by the plaintiff and the representative of the agents in Areeibo, Arturo Diaz, comprising the goods on hand on October 20, 1900, amounting to five hundred and sixty-seven dollars; a receipt from Lucas Birriel, dated August 25, 1900, for four hundred dollars, being the value of a stock of goods in a store he had, which he sold to the plaintiff in the presence of two witnesses and under inventory approved'by the purchaser; several bills and receipts of September, 1900, and from October 9 to 18, the former aggregating one hundred and twenty-three dollars and forty-five cents, and the latter for October, three hundred and forty-one dollars and sixteen cents, among them the bill for one hundred and fourteen dollars and nine cents, of October 18, in favor of L. G-. de Blanco; the letter from the captain of the Insular Police, addressed to F. D. Stubbe, informing him that he had examined the two policemen who had repaired to the store to lend their assistance, and from their statement he deduced that Jové had suffered some losses by the fire, but could not determine whether said losses agreed witb tbe latter’s memorandum, for tbey did not know the amount of stock he had on hand, and as to theft, the policemen having stationed themselves at the doors of the establishment they succeeded in.preventing any while they remained there; a certificate of the chief of the municipal police stating that no theft of goods from the store had been reported to him, only the burnt counter and some other articles having been taken out; the depositary of Arecibo, by order of the Alcalde, certifies that from the record in his office it appears that neither Jové Hermanos, nor José Jové, nor Lucas Birriel, have paid any tax, as merchants, not being included in the assessment, and according to report Birriel was 'a clerk in the employ of Manuel Olmo who paid for the quarter four dollars and twenty cents, and this was the store that had been sold to Luis Jové according to the accompanying certificate of conveyance, wherein is inserted the writing signed by them on the 21st of September, 1900, and presented on the 24th of the same month and year; that upon summoning Luis Jové, Armando Cadiela, A. Padilla, G. Marquez, González y Guisacola and L. Gonzalez de Blanco to exhibit their books, Luis Jové and L. Gonzales de Blanco declared that they did not keep any, the others exhibiting theirs, from which it appears that neither Jové Hermanos, nor Luis and José Jové, had any accounts current with them, the latter, according to the statement of the parties summoned, were accustomed to pay cash for their small purchases. Of defendant’s evidence there appears plaintiff’s confession to the effect that he kept no set of books because he sold only for cash, his entries being made in a memorandum book; that he had stocked his store when he first opened it, and afterwards bought supplies according to his needs; that at one of the corners of the counter he had two cans of kerosene from which he sold; he identified the documents relating to the stock, delivered to the company, and the memorandum, and thought that the signature of Vidal was the same; that all those who had signed the document knew that the insurance company had refused to pay the policy; that part of the goods were ruined by fire, and part by water; that a policeman had picked up the money from the floor together with the till, and handed them to the insurance agent, the money picked up being less than one dollar and twenty-five cents. The testimony of witnesses for defendant showed that the fire was caused by a fallen lamp; that an attempt to extinguish it was made; but it had spread, owing to some cans of kerosené and demijohns of alcohol, and went on increasing despite the efforts to control it; that there was a considerable stock of goods, a part of wbicb was burned; that only tbe counter, a table and a barrel were taken out, other articles being spoiled by water from tbe prunp.
    .“Counsel for defendants objected to tbe documentary evidence introduced by tbe adverse party, and botb parties waived the introduction of other evidence, including tbe expert testimony offered by the former, and argued in support of their respective claims.
    “Tbe 15th, 16th and*29th of October were set for voting upon the judgment, which had to be postponed and was had on this day, Judge José R. F. Savage, dissenting. His dissenting opinion is hereinafter set out. The decision of the court was rendered by Presiding Judge Juan Morera Martinez, as follows:
    “Each of the stipulations contained in a fire-insurance policy constitutes a covenant determining the rights and obligations of the contracting parties, and is therefore,'the law that should be observed and complied with in all questions arising between the underwriter and the insured; wherefore, five hundred dollars having been agreed upon as the value of the stock, including rum and kerosene, in small quantities, according to the terms of the policy,' and the defendant having failed to show any violation of said conditions, but alleging only that when the fire occurred there was not five hundred dollars worth of merchandise in the store, and that said fire had been only an attempt of an incendiary character, it was incumbent upon him to prove these allegations in order to offset the proofs presented by the plaintiff, and thereby sustain his exceptions.
    “The plaintiff having complied with clause 12 of the policy,' and there appearing from the proofs, taken together, especially defendant’s confession, that it had received from its agent notice of the fire as soon as it occurred; that said agent had been left in charge of the establishment, and received invoices or bills from a number of merchants signing the statement, which is similar to Exhibit ‘ C, ’ produced by the plaintiff, and signed by seven merchants who declared that the store, at a mere glance, was seen to contain goods amounting to five hundred dollars on the day of the fire and previous thereto, whose, signatures have been acknowledged by -the signers, in these proceedings, said acknowledgment being witnessed by the defendant, and that the amount given in the inventory and documents produced by the plaintiff agree with those submitted by the defendant in Exhibit No. 1, letter ‘C,’ private document, filed by him, said amount must be admitted, defendant having failed to show that it was less, or that the fraudulent declaration to which aforesaid clause 12 refers has been made.
    “There was no attempt of an incendiary character, as is shown by the ordei of October 22, 1900, dismissing ■ the investigation proceedings with reference to the fire occurring in Jové’s store on Carlos III .street, Areeibo, and declaring that said fire had been accidental, which decision strengthens the claim of the plaintiff, inasmuch as the. loss suffered by him through the fire is in the first finding thereof estimated to be five hundred dollars.
    “Both parties, by the act of June 13, having waived the further introduction of evidence offered, including the expert testimony proposed by the defendant, in view of the terms of clause 12 of the policy it is not necessary to comply with the provisions of article 2142 of the Law of Civil Procedure with respect to the manner of verifying the loss, according to said clause, that is to say, by the testimony of persons residing in the place where the fire occurred or who have frequently been there, and by inspecting the debris of the fire, the case not calling for the application of article 406 of the Code of Commerce.
    ‘ ‘ It being proper to sustain the complaint, costs should be imposed upon the defendant.
    “¥e adjudge that we should sustain and do sustain the complaint and accordingly adjudge The Palatine Insurance Company of London, represented by their agents, Gandía & Stubbe, to pay the plaintiff five hundred dollars, with costs against defendants. Thus by this our decision finally adjudging, do we find, order and sign.— Juan Morera Martínez, Juan R. Ramos, José R. P. Savage.”
    Notice of the foregoing decision having been served upon the party defendant, the said ¡party took an appeal for ■error of law, which appeal was allowed, the record being ordered to be forwarded to this Supreme Court, after citation of the parties within the legal period. Said parties having appeared the appeal in cassation was dealt with as an ordinary appeal, in conformity with the act of March 12 last, changing the Supreme Court into a court of appeals.' A day was set for the hearing at which counsel for the appellant and respondent sustained their respective claims.
    
      Mr. Guzmán Benitez (Jucm), for appellant.
    
      Mr. Alvarez Nava, for respondent.
   Mr. Justice Hernandez,

after making the above statement of facts, delivered the opinion of the court as follows:

The findings of -fact contained in the judgment appealed from are accepted with the following' modifications: First,, in the first finding where it says “the damages caused to the-stock in the establishment were necessary and immediate consequence of the measures adopted by the authorities and' chief of the fire-brigade, for the purpose, not only of putting out the fire of the building occupied in part by the burning store, but to cut it off from the greater part of the surrounding houses,” should read, “the damages caused to the stock in the establishment were the necessary and immediate consequence of the measures adopted by the authorities and chief of the fire-brigade, for the purpose not only of cutting off and putting out the fire which threatened to destroy, not only the building occupied in part by the burning store, but also the greater part of the surrounding houses.” Second, in the second finding, where it says, “identification of the signatures of the aforesaid seven merchants, five of whom were such, the other two being industrial agents, who acknowledged their signatures' affixed to said document, and declared that the statements made therein were true,” should read, “identification of the signatures of the aforesaid seven merchants, of whom five were such, the other two being industrial agents, all declaring that they acknowledged the signatures affixed to said document, and six- that the fact stated therein was true, while one, namely, Adrián Padilla, had corrected bis statement, saying that he had seen the establishment of Luis Jové fifteen or twenty days before tbe fire bad occurred, and be bad there observed and calculated tbe stock in tbe manner set forth in tbe document in question.” Third, in aforesaid third finding, where it is stated that tbe notarial act of November 21 1900, bad been executed by seven persons it should be understood that tbe parties executing said act were six. Fourth, in tbe same finding (third) where it says, “requisition to Grandia- & Stubbe to present invoices, which they did, as also the memorandum of the document from which one of the signers withdraws his signature, as appears from said memorandum,” should read, “requisition to Grandia & Stubbe to present the invoices and statement or document subscribed by several merchants to show that there was stock in the establishment.amounting to. a larger sum than the one insured, and as they replied that the invoices had been joined to the bill of proofs filed by counsel for the plaintiff, Juan de Gruzmán Benitez, who was in possession of said document, he was summoned to present it, which he did, and it was found to have been signed on October 21, 1900, by thirteen persons claiming to be merchants who declare that during the last days they had seen the establishment of Luis Jové, and at a cursory glance they calculate that the stock then on hand might well be worth five hundred dollars, while it is to be noted that one of the signers, namely Juan Yidal, by a memorandum of April 9 -of the following year, declared that he withdrew his signature from aforesaid document.”

The conclusions of law contained in said judgment are likewise accepted, with the exception of the first.

The conditions stipulated in a fire insurance policy are compacts which determine the rights and obligations of the respective contracting parties, and, therefore, constitute the law that should be observed and complied with, in questions .arising between the underwriter and the insured.

The testimony of seven witnesses who acknowledged under oatli, before tbe municipal judge of Arecibo, tbe private document of November 20, 1900, wherein they- declared that on tbe day tbe fire occurred in tbe establishment of Luis Jové and shortly before that time, tbe stock in said establishment, conscientiously calculated at sight amounted to from five hundred to six hundred dollars, was 'given as a means of proof, accepted by the lower court in a ruling of March 29, 1901, with citation of the adverse party, who could have requested the court to require said witnesses to appear at the oral trial for examination and cross-examination, in a proper case, and in the event of such a request being overruled, aside from the protest that in due time might be entered, he could have formulated the questions to be put to said witnesses, and this the party appellant failed to do, for which reason the testimony of these witnesses, given under oath and with citation of the adverse party, cannot be considered as null and void.'

We adjudge that we should affirm and do affirm the judgment appealed from, rendered by the District, Court of San Juan, November 7, 1902, with costs against appellant. The record is ordered to be returned to aforesaid court with the proper certificate.

Chief Justice Quinones and Justices Figueras, Sulz-bacher and MacLeary concurred.  