
    JAMES O’BRIEN, Sheriff, &c., Plaintiff and Respondent, v. THE COMMERCIAL FIRE INSURANCE COMPANY, Defendant and Appellant.
    I. INSURANCE, EIRE.
    1. Clause in policy requiring the assured to produce Ms hooks of account, and other vouches and. certified copies of all bills and invoices, the originals of which have been lost, is sufficiently complied with if
    
    the assured furnished all the information he had, made no concealment, furnished copies of all bills and invoices that he had in his possession, and produced any and all invoices and other papers under his control, or that he could reasonably get, and acted in good faith
    
      he is not hound as matter of law
    
    to send to persons from whom he was in the habit of purchasing and obtain new invoices, but he is bound to procure everything that he reasonably can.
    3. demise in policy that if the premises shall become meant and unoccupied, without the assurer’s assent, the policy shall be void.
    
      1. When not to be considered as matter of law vacant and-unoccupied under this clause.
    
      a. The premises do not as matters of law become meant and unoccupied by the occasional and necessary absence therefrom of the assured, his family, and servants.
    1. It is a fact, however, which may be considered in connection with other matters as bearing on the question, as to whether there was an intent to leave permanently.
    8. Clause in policy that if premises shall be occupied or used so as to increase the rish, the policy shall be void.
    1. The assured’s leaving the premises closed during ordinary business hours, and being absent during the twenty-six days prior to the fire, and engaging with his clerk in business at another place eighty miles distant, will not under this alamse vitiate the policy ;
    
    
      especially
    
    when there is no evidence that by reason thereof the rish was increased.
    
    but,
    if the assured upon leaving the premises closed on the last-occasion before the fire did not intend to return and carry on-business in a regular and usual course, the policy would be vitiated under the abandonment clause.
    
    4. Negligence of assured, in the absence of fraud, will not prevent a recovery, even though it be very great in degree, n. EVIDENCE.
    1. Instrument sued on, non-production oe.
    1. Although a plaintiff neither produces the instrument, nor after excusing its non-production introduces secondary evidence of its contract, yet the complaint will not be dismissed for that cause,
    when the assured admits tne making of the instrument, and the instrument itself is put in evidence by the defendant, and was in the hands of plaintiff’s agents, one of whom wag-examined as a witness in defendant's behalf.
    IH. ATTACHMENT AGAINST PROPERTY.
    1-. Suit by sheriee to recover attached claim.
    1. When to be deemed commenced.
    
    At the time of the service of summons in the suit.
    NOT
    at the time of the service of the attachment.
    
      Before Monell, Ch. J., and Curtís, J.
    
      Decided January 4, 1875.
    Appeal by defendant from a judgment, and from an order denying a motion for a new trial.
    This is one of four actions brought in this court by the plaintiff, to collect four policies of insurance for two thousand five hundred dollars each, by virtue of seven warrants of attachments against E. S. Candler, Jr.* the party insured. The defendant’s answer admits making the policy, but denies knowledge of the fire,' and due notice and proof of loss, and alleges false representation and overvaluation in obtaining the policy, and increase of risk thereafter by leaving the store without protection.
    The policy contained the following clauses: “If the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied, or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever, within the control of the assured, without the assent of this company, indorsed hereon ; then and in every such case this policy shall be void.”
    “The assured shall, if required, submit to an examination or examinations under oath by any person appointed by the company, and subscribe thereto when reduced to writing, and shall also produce their books of account and other vouchers, and exhibit the same for examination at the office of the company, and permit extracts and copies thereof to be made ; the assured shall also produce certified copies of all bills and invoices, the originals of which have been lost, and shall exhibit all that remains of the property which was covered by this policy, damaged or not damaged, for examination by any person or persons named by the company.”
    At the close of plaintiff’s case, defendant moved for a dismissal of the complaint on the ground (among others) : That plaintiff had failed to produce and put. in evidence the policy of insurance upon which the action was brought, and had failed to supply any. evidence to excuse the non-production of it, and had not given or offered secondary evidence of its contents ; which motion was denied, and defendant excepted. On the close of the evidence on both sides, defendant moved for a dismissal of the complaint, on the following (among other) grounds:
    
      First. That such proofs of loss as have been furnished, did not comply with the terms and conditions of the insurance, and that Candler, on whose account the action was sought to be maintained, had neglected or refused to comply with the said terms and • conditions in respect to furnishing such proofs as were required, and also in respect to furnishing bills, vouchers, inventories, and other proofs and information, as required of him by defendant or its agent.
    
      Second. That the last pretense of proofs was served after February 11, 1869, from which time sixty days must elapse before suit could be brought, or any claim under the contract would mature. That this action must date from the time the first attachment was issued. That it did not appear in evidence that such proofs were served more than sixty days before any of the attachments were issued.
    
      Third. ' That the non-occupancy of the premises at and for some time previous to the fire, as disclosed by the evidence, was a breach of warranty contained in the policy, and rendered it void.
    
      Fourth. That such non occupancy was a manifest increase of the risk, and avoided the policy.
    
      Fifth. That the risk was increased by means within the control of the insured, in withdrawing the occu- ■ pancy of the store at night, either by his clerk, or any other person.
    
      Which motion was denied, and defendant excepted. Defendant’s counsel thereupon requested the court to charge as follows :
    “ If the jury believe from the evidence that the risk insured was increased by any means whatever within the control of Candler, and during the pendency of the policy, then their verdict must be for the defendant.”
    .” If the jury believe from the evidence that, in leaving the store-house closed during ordinary business hours, and during the days or time after October 1, 1868, as shown in the evidence, and being absent, and finally with his clerk engaged in business in another place eighty miles distant, the risk to the said store premises of being burned by fire was increased, then their verdict must be for defendant.”
    The court refused to charge as requested, and defendant excepted to such refusal.
    The court among other things charged :
    “ As to the other point made by the counsel respecting these preliminary proofs that Mr. Candler did not furnish duplicate copies of the invoices, I differ with him as to its being a question of law, and I shall leave it with you as a question of fact. The insured was bound to furnish copies of all bills and all invoices that he had in his possession. If they have shown to you by evidence,- or it appears by circumstancés that they were burned, the insured was not bound to send off to the persons from whom he was in the habit of purchasing, :and require new statements of the items ; he was only bound to furnish the contents of the invoices sent to him, so far as his memory served. For instance, as matter of illustration, if you find from the facts of the case that, although his invoices were burned, he still knew enough of the facts of the case as to the goods sent him to go into greater particulars than in fact he did, and he intentionally omitted to do so, was evasive, and made the answers he did as an excuse simply not to furnish all the information he could, then he has not complied with all the conditions of the policy. But if, on the other hand, he furnished all the information he-had, and made no concealment, then he has complied with the conditions of the policy, and so far as that point is concerned, is entitled to recover. I add that he-was bound to produce any invoices or other papers called for under his control, or that he could reasonably get; and also, say, as matter of law, he was not bound to send off to persons from whom he was in the habit of purchasing, and require new statements of the items, but if the facts of the case show he could reasonably procure anything, he was bound to do so.”
    To which the defendant excepted.
    The court further charged :
    “By the occasional and necessary absence of Candler from the store, or its being temporarily closed, as-testified to, the premises did not become vacant and unoccupied, in the sense contemplated by the conditions of the policy. That is the law. His leaving the store, as testified, temporarily, within the ten days or two weeks before the fire occurred, is only a fact that you can consider, to ascertain whether, on Thursday or Friday, he meant to leave permanently.”
    To which the defendant excepted.
    The court further charged :
    “If Candler acted in good faith, and endeavored to-comply with the conditions of the policy as to service of proofs of loss, and furnished such as he could, he did. all that the policy required.”
    To which defendant excepted.
    The jury rendered a verdict for plaintiff for the full amount claimed. Defendant thereupon moved for a new trial on the minutes, which was denied. Judgment was thereafter entered on the verdict. Defendant appealed from the judgment, and the order denying the motion for a new trial.
    
      The evidence is sufficiently adverted to in the opinion.
    
      Raymond & Courson, attorneys, and George W. Parsons, of counsel for appellant.
    
      Brown, Hall & Vanderpoel, attorneys, Wm. W. Badger & Livingston K. Miller, of counsel for respondent.
   By the Court.—Curtis, J.

That there had been & fire, and that the defendant made the insurance, was shown without dispute at the trial. The defendant claims that the court erred in submitting the question in respect to the proofs of loss to the jury as a question of fact instead of law. The defendant insisted that the plaintiff should have furnished certified copies of all bills and invoices relating to his loss. There was evidence that the papers were burned at the fire. The -court charged that if the jury believed from the evidence that Candler neglected or omitted to furnish, on the written requests of defendants or their agents, any vouchers, inventory or inventories, duplicate bills of purchases, copies of invoices of purchase, or any other statements touching his loss, which it was in his power to furnish, then the loss under the policy had never become payable, and plaintiff can not recover; and that if he had not done in this respect all that he could, and that was reasonable under the circumstances, he was not entitled to recover.

It was claimed by the defendant, that the evidence •showed that there had been an inventory made since the making of the one referred to in the preliminary proof of loss, and which the plaintiff did not furnish pursuant to the call made upon him for it. The court charged that if the plaintiff had made such an inventory, and did not furnish it, he was not entitled t'o recover, and that he was bound to furnish all the information he could. There was conflicting testimony as-to whether the plaintiff had furnished all those papers- and copies of papers, and information, that he could furnish. A question of fact arose upon the evidence, which was submitted to the jury, with proper instructions for their guidance, according as they should determine it.

There was also some conflict of testimony as to the-alleged false representation, and over-valuation in obtaining the policy, and also as to the amount and value of the property destroyed by the fire. All this evidence was submitted to the jury clearly and fairly by the court, and they were instructed that if Candler committed any fraud, if he over-estimated the goods, if he attempted to deceive the defendant in his preliminary proofs, if he presented false evidence in any way, if he swore falsely or procured false testimony, the plaintiff was not entitled to recover anything.

The requests of the defendant to the court to charge were complied with, or substantially complied with, except in one respect, to be presently considered.

Upon the questions of fact thus submitted, the jury appear to have found for the plaintiff. After a consideration of the evidence, conflicting as it is in many respects, it is impossible to concede, as the defendant claims, that it fails to support the verdict, and that there should be a new trial granted for that reason.

The evidence showed that a week or ten days before-the fire the store was kept closed mostly during the days, and no one slept there at night. It appeared Candler was absent with his clerk at another store, ancl that Tomlinson, who had quit the business but made Candler’s store his headquarters, and sold for him> when he and his clerk were absent, and who lived in his house, was at that time confined to his bed by illness. The defendant requested, the court to charge-that if the jury believed from the evidence that, in leaving the store-house closed during ordinary business-hours, and during the days or time after October 1, 1868, as shown in the evidence, being absent, and finally with his clerk engaged in business in another plane, eighty miles distant, the risk to the said store premises-of being burned by fire was increased, then their verdict, must be for defendant

The defendant also requested the court to charge that if the jury believe from the evidence that the risk insured was increased by any means whatever within the-control of Candler, and during the pendency of the policy, then their verdict must be for the defendant.

These are the requests the court refused to charge, and to which refusals the defendant excepted. There were no provisions in the policy requiring the "store to be kept continuously open, or that a person should sleep there at night, and no obligation was incurred to that effect by the plaintiff.

The court, however, charged that if the jury believed, from the evidence that Candler, after leaving his storehouse closed on the last occasion before the fire, did not intend to return to it again and carry on business-there in a regular and usual manner : then, within the meaning of the conditions of this insurance contract, the premises became unoccupied, and.their verdict must be for the defendant, but that the occasional and necessary absence of Candler from the store, or its being temporarily closed, as testified to, was not becoming- “ vacant and unoccupied ” in the sense contemplated by the conditions of the policy. That was the law, and that his leaving the store as testified, temporarily, within the ten days or two weeks before the fire occurred, is only a fact for the jury to consider, to ascertain whether, on Thursday or Friday, he meant to-leave permanently.

The court properly instructed the jury as far as the-absence of Candler related to the provision in the policy, as to the premises becoming vacant and unoccupied. There was no error in declining to charge those requests, especially as there was no evidence of an increase of risk, by reason of Candler’s absence, or by reason of not having a person sleep at night on the premises, or for any cause whatsoever. If the evidence did establish the existence of negligence, even very great in degree on the part of the insured, or those acting under him, and occasioning the loss, yet in the absence of fraud the loss is covered by the policy. Mr. Justice Stobt, in the Columbia Ins. Co. v. Lawrence, 11 Peters, R. 518, says, “ that a loss by fire occasioned by the mere fault and negligence of the insured, or his servants or agents, and without fraud or design, is a loss within the policy,” and states that this doctrine was discussed and adopted by the court in The Patapsco Ins. Co. v. Coulter, 3 Peters R. 222. In St. John v. The American M. F. and M. Ins. Co., 1 Duer, 381, this was considered the correct rule; and in Gates v. The Madison Ins. Co., 5 N. Y. R. 478, the reason why it should be so as one of the very objects of insurance, to protect the insured against his own negligence and that of others, is discussed ; and this decision ■is followed in Matthews v. The Howard Ins. Co., 11 N. Y. R. 14, and Judge Denio mentions in the opinion, that the supreme court had formerly held a contrary doctrine citing Grim v. The Phoenix Ins. Co., 13 John. 451.

The objection that the plaintiff did not produce the policy of insurance on the trial, is not of much force. The answer admits the making of the policy, and it appears in the case as one of the Exhibits on the defendant’s part. It was in the hands of Bryce & Company, who were the plaintiff’s agents in this city at the time of the insurance, and one of whom, James Bryce, was examined as a witness on the part of the defendant.

The defendant objects, that this action was prematurely brought, that it should date from February, 1869, when the attachment was served, instead of from its actual date in June, 1869, and that consequently if commenced in February, 1869, it was commenced before the expiration of the sixty days from the receipt of the proofs in conformity with the condition of the policy. The defendant errs in regarding this suit commenced by the sheriff in June, 1869, under the warrants of attachment, as a part of the same proceedings as those in which the attachments were issued in February, 1869. The claim of Candler against the defendant, whatever it may have been in February, 1869, was levied upon by the attachments, and this subsequent action was commenced by the sheriff to protect and enforce that claim against the defendant, and when the judgment and costs in the attachment suits are satisfied, the code (Sub. 4, § 273) requires the residue of the attached property, or the proceeds thereof, to be delivered over by the sheriff to the defendant in the original attachment suits. There is no adequate reason for sustaining the objection and holding that the commencement of the present action should have been antedated to the time when the attachment suits were commenced.

There are several exceptions during the progress of the trial to rulings of the court as to the admission of evidence, but none that seem to constitute a sufficient ground for granting a new trial.

The judgment and order appealed from should be affirmed, with costs.

Monell, J., concurred.  