
    John Storm et al., Resp’ts, v. The Phenix Ins. Co. of Brooklyn, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Insurance (fire)—Waiver of' conditions of policy.
    In an action upon a policy of fire insurance, defendant claimed that there was no liability because the plaintiffs failed to produce invoices, etc., as required by the policy, but it was shown upon the trial that the defendant’s adjuster, in an interview with one of the plaintiffs, waived the producing of more definite information and several times asked him how much he would take, etc. Held, that it was inferable from the interviews that the defendant recognized the validity of the policy.
    2. Same—Evidence.
    Where one of the plaintiffs has been cross-examined at great length on the theory that the fire was a dishonest one, it is not improper to ask him the question: “ Did you meet with any loss of any consequence between the time you commenced business and the fire ? ”
    3. Same.
    Where the policy specifies 1 ‘ stock of furniture and sewing machines contained in a one and one-half story building,” a witness may be permitted to state .what kinds of property are carried “ or kept in stock” by furniture dealers in country stores of that character.
    4. Same.
    Defendant’s agent was asked whether he had “found the people are generally ignorant of the conditions of their policies ” and answered: “I don’t find them all that way; I find some people .that probably were.” Held, that the question was harmless as defendant was not prejudiced by the evidence, as the witness stated no fact not generally known or understood. ■
    5. Same.
    A charge to the jury by the court, as to fraud, etc., that, “of course, when you come to the question of fraud or false swearing, it must be intentionally wrong, and not a mistake,” is not improper.
    6. Same.
    Plaintiff, who was charged with setting fire to bis own building, testified thq.t on the evening of the fire he left the building with one Dr. Potter, who resided some eighteen miles distant. Held, that the fact that plaintiffs did not produce Dr. Potter as a witness was not sufficient to justify interfering with the verdict in their favor.
    Verdict for the plaintiff for $535.94 in the Jefferson circuit, and the jury say: “ That in fixing the value of the property they include all the items in exhibit 35 at the prices therein stated, excepting No. 135, forty yards of rag carpet, $20, and item No. 180, twelve bottles of sewing machine oil, $10, which are not included.”
    Appeal from the judgment entered upon the verdict, and from an order denying a motion for a new trial made upon the minutes of the court.
    May 8, 1888, the appellant issued to the respondents its policy of insurance for the term of one year “ in the sum of $500 on stock of furniture and sewing machines contained in the one and one-half story frame building situated on the south side of Main street, Lafargeville, Jefferson county, N. Y.” The complaint alleges that on the 29th day of August, 1888, the plaintiffs owned and had in the building a stock of furniture and sewing machines of the value of $1,639.38, and that the property was wholly destroyed by fire on that day, and that due notice of and proofs of loss were given to the defendant. Defendant’s answer denied the allegations of the complaint, and alleged that after the fire the defendant had demanded an invoice of the goods and property claimed to have been destroyed, or certified copies thereof, and that the plaintiffs had failed and neglected to furnish the same, or to furnish the defendant with the names of persons from whom the said goods and property were purchased, and that plaintiffs were guilty of fraud and false swearing in their proofs of loss in stating the amount of such loss was upwards of $1,600, and that the fire by which the property was destroyed was caused by the act or procurement of the plaintiffs, with design and intent to destroy the property covered by the policy of insurance, and injure and defraud the defendant out of the amount of such insurance.
    
      A. H. Sawyer, for app’lt; Watson M. Rogers, for resp’ts.
   Hardin, P. J.

Appellant insists that a recovery in this action could not be had “ by reason of plaintiff’s failure to furnish invoices or bills of purchase of the property claimed to have been destroyed by fire, or certified copies of such bills or invoices, or to render any excuse for such failure, and the trial court should have directed a verdict as requested in favor of the defendant at the close of the proofs.” The policy contained a provision as follows: “ The insured as often as required shall produce for examination all books of account, bills,, in voices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.” By the evidence it appears that the plaintiff’s books of account, bills, invoices and other vouchers were totally destroyed by the fire, and that they had no originals or certified copies thereof. These facts were communicated to Marshall, the agent of the defendant, who visited the scene of the fire the day following its ^occurrence. These facts were also communicated to Mr. Camp, an adjuster and general agent of the defendant, who, a few days after the fire, in company with Mr. Storm, visited the premises to look into the matters pertaining to the loss; on that occasion the plaintiffs made up and gave to Camp a rough statement of their loss, which he took and carried away with him and retained. Subsequently and on the 13th of October, formal proofs of the loss were made and served upon the defendant, in which it was . claimed that the total loss was $1,639.38. Some correspondence took place in respect to the invoices and in respect to names of houses where the goods were bought; and assurances were given to the plaintiff that Camp would return to Lafargeville and further investigate the matter. In the month' of February, 1889, Camp went to Lafargeville and had an interview with the plaintiff Storm, who offered to go after Pierce and get him, stating that Pierce could furnish more information in regard to the matter, and in reply thereto Camp said he could get all the information he wanted of Storm. In regard to what took place at that interview, Storm testifies: “ We were in the sitting room there all that afternoon ; inquiring about such and such goods, where they were purchased; I told him if he would wait until I could drive over and get Pierce I thought be could give him more information in regard to it than I could, but he said he thought he could get all he desired from me; he took his list out and inquired where such and such articles were bought, and I told him as near as I could ; I gave him the names and residences of the persons that we bought of as well as I was able; I did not tell him at that time or at any time that I could not furnish vouchers for all and I would not furnish him any; I never said anything of that sort; I gave him all the information it was possible for me to give. * * * He told me that he thought I could furnish him all the information he wanted; that was after I had proposed to go and get Pierce; I then gave him what information I was able to; after that he did not tell me that that was not enough, or anything of that sort; I did not hear from him from that time nor see him nor have any letter from him. * * * Mr. Camp asked me, as many as five or six times, how much I would be willing to take, but he never made any proposition to me or how much he would give me; I did not say to him that I would have $500 or none; I told him I would take $500 ; if there was anything to be deducted from that it was for him to suggest, not I.” The evidence which we have quoted is in conflict with the evidence given by the defendant. It is insisted very earnestly in behalf of the appellant that the evidence did not warrant the court in submitting to the jury the question whether the defendant had waived a strict compliance with the provisions of the policy. It is inferable from the interviews that the defendant recognized the validity of the policy.

In Titus v. Glens Falls Ins. Co. (81 N. Y., 419), it was said: “ But it may be asserted broadly that if, in any negotiations or transactions with the insured, after knowledge of the forfeiture, it recognizes the continued validity of the policy, or does acts based thereon, or requires the insured by virtue thereof to do some act or incur some trouble or expense, the forfeiture is as matter of law waived ; and it is now settled in this court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.” That case follows the doctrine laid down in Goodwin v. The Massachusetts Mutual Life Ins. Co. (73 N. Y., 480), in which latter case it was said: “ Nor is it deemed essential that the waiver should be explicit and pointed in its application.” The doctrine of the case just cited was approved in Roby v. A. C. Ins. Co. (120 N. Y., 517; 31 N. Y. State Rep., 560), and upon the facts disclosed in the latter case, it was held that the question of waiver was properly submitted to the jury. If the defendant had stood upon the correspondence, and no personal interviews had taken place between the plaintiffs and the agent of the defendant, the case would be more like O'Brien v. Commercial Fire Ins. Co. (63 N. Y., 111).

(1) In the trial of that case no claim was made that a compliance was impossible, or that the defendant had waived it; ” and the court observed that the question of waiver was made for the first time on appeal; and the court further observed: “Had that been the contention at the trial, it would have been a question of fact for the jury; the cause was tried upon that theory.” We think, therefore, the case in hand differs from the O'Brien case.

In response to a request by the defendant’s counsel the court charged the jury that “ unless the evidence establishes the proposition that Camp deliberately intended to' withdraw and not insist upon his requirement that the - plaintiffs should furnish such certified copies of invoices,” the jury could not find a waiver. We think this submission was as favorable to the defendant as it was entitled to.

(2) We think it was for the jury to determine whether credence should be given to Storm, as a witness, or to Camp, the agent of the defendant.

After Pierce, one of the plaintiffs, had been examined at great length in respect to the quantity of goods in the building at the time of the fire, and had been cross-examined exhaustively with a view of belittling his statements and questioning the extent of the property consumed, in re-examination he was permitted to answer the following question: “ Do you know how much capital you and Storm put into the business ? ” This question was objected to as immaterial and the defendant took an exception. After a careful perusal of all his evidence preceding the question we are not prepared to say that the inquiry was immaterial; we therefore disregard the exception. The same witness was asked: “Did you meet with any loss of any consequence between the time you commenced business and the fire? ” This was objected to as incompetent The witness prior thereto had been cross-examined upon the theory that the fire was a dishonest one, and considering the wide range of the cross-examination we think the admission of the fact that there had been no loss in business prior to the fire was not improper.

(3) A witness was permitted to state what kinds of property are carried or “ kept in stock by furniture dealers in country stores of that character.” The language employed in the policy was: “ On stock of furniture and sewing machines contained in a one and one-half story building.” Notwithstanding the objection to the evidence we think it was admissible. Hall v. Insurance Company of North America, 58 N. Y., 292; Wall v. Howard Ins. Co., 14 Barb., 383; Pindar v. The Kings County Ins. Co., 36 N. Y., 648.

It is said in Flanders on Fire Insurance, at page 72, viz.: “ The courts endeavor to give effect to the intention of the parties in construing policies of insurance. Hence in ascertaining what they were designed to cover they look at their general scope as well as at the collocation of the particular words. And as the language of an insurance policy is the language of the company, and they can therefore provide for every proper case, it is to be taken in a sense most favorable to the assured” And in Rolker v. Great Western Ins. Co., 4 Abb. Ct.App. Dec., 82, it is said the insurers “should be held to have extended the most liberal meaning of which the language is reasonably susceptible, as it was chosen by themselves.”

In Hall v. Insurance Company of North America, supra, Judge Grover said: “ It is an elementary rule that underwriters are to be assumed to know the usual course of conducting business in connection with which they issue policies. Hence, when a policy is issued upon a stock of goods in a specified business, the underwriter is presumed to know what goods are usually kept by those engaged in that business.”

(4) In the course of the cross-examination of one of the defendant’s agents he was asked to state whether, in his observation, he had “ found the people are generally ignorant of the conditions of their policies ? ” This question was objected to as incompetent, and the objection.was overruled and the defendant took an exception. The answer which the witness made was as follows: “ I don’t find them all that way; I find some people that probably were.” It is difficult for us to see how the defendant was prejudiced by that evidence. The witness stated no fact not generally known and understood or which does not frequently come to judicial notice.

(5) It is insisted in behalf of the appellant that the “plaintiffs were guilty of such misrepresentations, fraud and false swearing in reference to the loss that they ought not to be allowed to recover in this action for that reason alone.” In the course of the charge of the learned trial judge upon that subject he observed: “Of course when you come to the question of fraud or false swearing it must be intentionally wrong and not a mistake.” The charge seems to be in accordance with the decision of this court in Dolan v. Ætna Ins. Co., 22 Hun, 397.

(6) It is insisted in behalf of the appellant that evidence was given upon the trial tending to show the “ origin of the fire was raudulent, and the answer contained a charge that the plaintiffs set the fire' which destroyed their goods.” The plaintiff gave evidence to the contrary. One of the plaintiffs testified that on the evening of the fire Dr. Potter was with him in the store and he left the store with the plaintiff when he left, and he was not produced as a witness, although he resided some eighteen miles distant; and the position of the learned counsel for the defendant is that the failure to produce Dr. Potter must be taken as a circumstance against the plaintiffs. However, the circumstance is not conclusive.

Counsel calls our attention to Newman v. Cordell, 43 Barb., 455. In that case it was said: “ The absence of evidence, which it is clearly in the power of the party to produce, is often as effective in" disposing of a case as testimony of a positive character.” The force and effect to be given to the circumstance that Dr. Potter was not called was for the jury to consider. We may not regard his absence as a sufficient ground to interfere with the verdict All that is said in National Bank of Rondout v. Dreyfus, 14 W. Dig., 160, is that, under such circumstances, the failure to produce evidence available to a party is to be taken strongly against him. It is not a conclusive circumstance. We must assume the jury gave proper weight to it.

• (7) It is suggested by the learned counsel for the appellant that it was expressly provided by the policy that pictures, which would cover both paintings and chromos, should not be covered unless liability was specifically assumed thereon by the 'policy.” We have not found the policy set out in the case.

We are of the opinion that the question as to the extent of the damages was properly submitted to the jury for their determination, and that their verdict should be accepted.

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.  