
    *Home Ins. Co. v. Cohen.
    January Term, 1871,
    Richmond.
    Absent Jovnes, J., sick,, and Staples, J.
    1. Insurance Policy — Conditions—Reasonable Compliance Sufficient. — in an action on a policy of insurance against fire, all that can be required of the plaintiff is a reasonable and substantial compliance with the conditions of the policy.
    2. Same — Same.—One of the conditions of the policy is, among- other things, that the insured shall forthwith give notice of his loss, and as soon as possible deliver in a particular account of such loss, signed with his own hand, and verified by his oath or affirmation; and also, if required, shall produce their books of accounts, &c., and exhibit the same for examination by any person named by the company; and until such proofs are furnished the loss shall not be deemed payable. The account having been furnished, first under the oath of an agent, and when so objected to, under the oath of the principal, and the company having been called upon to state what other proofs they required, and not stating what, Held:
    1. Same — Same—Waiver.—The company will be held to have waived any demand for further preliminary proof.
    2. Same —Same—Same.—The books and papers being to be produced if required, and the company not having named a person to examine them, it must be considered as a waiver of any demand for them.
    
      In October, 1867, M. Cohen instituted an action of assumpsit in the Circuit court of the city of Richmond, against the Home Insurance Company, of New Haven, Connecticut, to recover the value of certain goods which had been insured by the Company, and had been destroyed by fire. The action was founded itpon a policy of insurance issued through their agents in Richmond, by which the Home Insurance Company insured Cohen against loss by fire to the amount of three thousand dollars, on his stock of dry goods, &c., contained *in the wooden building No. 1715, occupied by him on Main street, in the city of Richmond. The policy seems to be in the usual form issued by the Company. The only provision of the policy which it seems necessary to state, is the following: “And all persons insured by this Company and sustaining loss or damage by fire, are forthwith to give notice thereof to the Company; and as soon after 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 ; they shall also declare on oath whether any and what other insurance has been made on the same property; what was the whole value of the subject insured ;” 1 ‘when and how the fire originated, so far as they know or believe; and also, if required, shall produce their books of account and other proper vouchers, and shall also produce certified copies of all bills and invoices, the originals of which have been lost, and exhibit the same for examination by any person named by the Company, and be examined under oath touching all questions relating to the claim; and until such proofs are furnished and loss shall not be deemed payable. ’ ’
    Upon the trial of the cause, after all the evidence had been introduced, the defendant moved the court to give two instructions to the jury; to which the plaintiff objected, and asked the court to give four instructions ; to which the defendant objected. But the court gave both sets of instructions; and to this opinion of the court the plaintiff excepted, so far as it gave the instructions asked for by the defendant, and the defend'ant excepted as to the instructions asked by the plaintiff. The bill of exceptions'sets out all the evidence; and the instructions, and the material part of the evidence, are given in the opinion of the court, delivered by Judge Christian.
    There was a verdict and judgment in favor of the plaintiff for twenty-five hundred dollars, with interest *thereon from the 17th day of August, 1867, till paid; and thereupon the Home Insurance Company applied to this court for a super-sedeas to the judgment, which was awarded.
    Crump, for the appellant, insisted,
    1st. That the plaintiff having averred, in his declaration, that he had performed the conditions required of him by the policy, which were conditions precedent to his right of recovery, he could not maintain his action by proof of the defendant’s waiver of these conditions. And to maintain this proposition he referred to 2 Wend. R. 64, 403; 7 Barb. R. 171; 8 John. R. 392; 9 Id. 115; 15 Id. 204; 4 Cow. R. 566; 8 Mass. R. 388; 3 T. R. 90; Oakley v. Morton, 1 Kern. R. 25; 5 Rob. Prac. 252. And if it was impossible to perform the condition that is no excuse. 2 Pars, Cont. 528. And he insisted that if the plaintiff relied on a waiver of performance of the conditions by the defendant, he should have so alleged it in his declaration, and should have set out the facts which constituted the waiver. 1. Chitty’s PI. 354-358; 20 Eng. E. & E. R. .541.
    2d. That the evidence did not authorize the giving the second instruction asked for by the plaintifE.
    3d. That the second instruction was further erroneous, because it presented only a partial view of the evidence, and left to the jury an enquiry only as to certain facts picked here and there from the proofs, upon which, as a conclusion of law, the supposed waiver was based. And he insisted that the question of waiver was a question of fact, and the jury should not have been instructed that certain facts, if found, constituted a waiver.
    4th. That the instructions given for the defendant and plaintiff were contradictory, and calculated to mislead the jury, and therefore erroneous. Ragland v. Butler, 18 Gratt. 323; Rosenbaum v. Weeden & al., Id. *785; Ward v. Churn, Id. 801; Peshine v. Shepperson, 17 Id. 472; McDowell’s ex’or v. Crawford, 11 Id. 377; Balt. & Ohio R. R. Co. v. Polly, Woods & Co., 14 Id. 447.
    Eyons, for the appellee,
    insisted that the Circuit court did not decide that the plaintiff was released by a waiver from all preliminary proof; but simply that when proof of substantial performance had been given, and no demand had been made for further preliminarjr proof by the defendant, or any objection had been made to the sufficiency of the proof offered, then they must be regarded as having waived their right, if they had it, to demand a more particular specification of loss. And he referred to the language of the condition, which says, “if required,” the insured shall produce their books, &c., and exhibit the same for examination by any person named by the company. Thus shewing that this was only to be done if required, and for a particular purpose. And he insisted, 1st, when what are called preliminay proofs are offered by the insured, and are not objected to by the underwriter, all objections are waived, and cannot be relied upon at the trial. And for this he referred to Turley v. North Amer. Hire Ins. Co., 25 Wend. R. 374; O’Neil v. Buffalo Hire Ins. Co., 3 Comst. R. 122; Mc-Masters & ais. v. Westchester County Ins. Co., 25 Wend. R. 379; Bodle v. Chenango County Mutual Ins. Co., 2 Comst. R. 53; Westlake v. St. Rawrence County Mutual Ins. Co., 14 Barb. R. 206; Bumstead v. Dividend Mutual Ins. Co., 2 Kern. R. 81; Hireman’s Ins. Co. v. Crandall, 33 Alab. R. 9; Hrancis v. Somerville Mutual Ins. Co., 1 Dutcher’s R. 78; Underhill v. Aga-wam Mutual Hire Ins. Co., 6 Cush. R. 440; Peoria Marine & Hire Ins. Co. v. Rewis, 18 Illin. R. 553; Baltimore Hire Ins. Co. v. Roney & al., 20 Mary. R. 20; Hranklin Hire Ins. Co. v. Updegraff, 43 Penn. R. 350; Bersche v. Globe Mutual Ins. Co., 31 Missouri R. 546; Rathbone v. City Hire Ins. Co., 31 Conn. R. 194; Peacock v. New York Rife Ins. Co., 1 Bosw. N. Y. 338; * Ayres v. Hartford Hire Ins. Co., 17 Iowa R. 176 ; Brown v. King’s County Hire Ins. Co., 31 How. Prac. R. N. Y. 508.
    2d. That a substantial compliance with the policy by the assured was sufficient. Sexton v. Montgomery Co., 9 Barb. R. 191.
    3d. That when the books and accounts of the insured are lost, the general statement of the loss is sufficient. Mechanics’ Hire Ins. Co. v. Nichols & al., 1 Harrison’s N. J. R. 410; Wightman v. Western Marine & Hire Ins. Co., 8 Rob. Ra. R. 442; Hranklin Ins. Co. v. Culver, 6 Ind. R. 137.
    
      
       Insurance — Conditions—Reasonable Compliance Sufficient. — The proposition laid down in the first headnote, that a reasonable and substantial compliance with the terms of the insurance company is all that can be required, has been expressly sustained in Georgia Home Insurance Company v. Goode, 95 Va. 755, 30 S. E. Rep. 366, and Bryan v. Peabody Insurance Company, 8 W. Va. 610.
    
    
      
       Same — Same—Waiver.—In Geo., etc., Co. v. Kmnier, 28 Gratt. 112, the principal case is cited and approved in regard to the doctrine of waiver in insurance cases. See also, the principal case cited in Rockingham, etc., Co. v. Sheets, 26 Gratt. 866.
      
        Sen foot-note to Geo., etc., Co. v. Kinnier, 28 Gratt. 88, for a-collection of cases on this subject.
      See, generally, monographic note on “Pire and Marine Insurance" appended to Mut., etc., Soc. v. Holt, 29 Gratt. 612.
    
   CHRISTIAN, J.,

delivered the opinion of the court.

This case is before us upon a writ of error to a judgment of the Circuit court of the city of Richmond. The suit was instituted on a policy of insurance issued by the appellants on the 16th November, 1866, by which the appellees were insured to the. amount of $3,000 against loss by fire. The building containing the goods insured was destroyed by accidental fire on the 31st March, 1867, which totally consumed a large portion of the goods, together with all the books and papers of the insured.

The only question we are called upon to determine, is whether it was error in the court below to give to the jury the instructions moved by the plaintiff’s counsel.

It seems that both the plaintiff and defendant moved the court for instructions; and both sets of instructions were given in the form in which they were respectively presented. The court first gave the following instructions, which were moved by the defendant’s counsel:

1st. That it was the duty of the plaintiff, within a reasonable time, to give to the defendant notice of his loss and damage; and as soon thereafter as possible to ^deliver to the defendant a particular account of such loss or damage, signed with his own hand, and verified by his oath or affirmation; and also to declare on oath whether any and what other insurance had been made on the same property, what was the whole value of the subject insured, what was his interest therein, in what general manner (as to trade, manufactory, merchandise or otherwise) the building containing the subject insured, and the several parts thereof, were occupied at the time of the loss, and who were the occupants of said building, and when and how the fire originated, as far as the plaintiff knew or believed; and unless the jury is satisfied from the evidence that the plaintiff has complied substantially with these requirements of the policy, they must find for the defendant.

2d. That it was the duty of the plaintiff, when required by the defendants, to produce to the defendants certified copies of all bills and invoices, the originals of which have been lost, and exhibit the same for examination ; and unless the jury shall be satisfied from the evidence that the plaintiff has complied, as fully as it was in his power to do, with the provision of the policy, he is not entitled to recover in this action.”

To these instructions the plaintiff objected; but they were given by the court; and then the plaintiff moved the court to give the following:

1st. “If, from the evidence, the jury shall believe that the plaintiff has fairly and reasonably complied with the terms of the policy of insurance, he is entitled to recover of the defendants a sum sufficient to cover the loss which he actually sustained by the fire; provided it does not exceed the sum of $3,000, the amount expressed in the policy of insurance.”

“2. If the jury shall believe that the plaintiff was insured in the company of the defendants by policj'No. 136 (see policy copied on pages 21 to 29, inclusive, of the record), and that afterwards, on the night of 'x'the 31st March, 1867, the stock of the plaintiff was destroyed by accidental fire, and without any evil practice or fraud on the part of the plaintiff; and that on the day of April, 1867, the plaintiff furnished a statement of his loss, verified by the oath of his agent P. M. Colinsky; and that the defendants refused to receive the same, upon the ground that the policy required the statement of loss to be signed by the hand of the plaintiff, and verified by his affidavit, and so informed the plaintiff, his agent or attorney at law; and that afterwards the plaintiff, by his attorney at law, required the said company to point out what proof thej" required of the plaintiff, and to specify any defect in the proof of loss furnished, and that thereupon the defendants required the affidavit of loss to be made by the plaintiff himself; and the plaintiff afterwards, in a reasonable time, furnished the proof of loss contained in paper marked (A) (entered on page 40-41 of the record), and the defendants received the same without objecting thereto, or specifying any objection; and that said defendants at that time, and after such proof of loss was given, did not require a more particular specification of1 the loss ; then their right under their policy if any, to demand a more particular specification of the loss was waived by their neglecting to demand it.”

“3. The court instructs the jury that it is the duty of the defendants to prove evil practice or fraud on the part of the plaintiff, if they rely upon the same as a defence.

“4. If the jury shall believe, from the evidence, that in making his claim against the defendant, the plaintiff committed, wil-fully, any fraud or false swearing, for the purpose of enabling him to recover of the defendant more than he was justly entitled to under his policy, upon the facts as they really occurred, then- he is not entitled to recover. ’ ’

*As to the first instruction asked for by the plaintiff, we are of opinion that there is no error. It was substantially the same which had already been given to the jury in the first instruction propounded by the defendant’s counsel; the only difference being that the latter sets out specifically the several conditions of the policy, and then says that “unless the jury shall believe, from the evidence, that the plaintiff has substantially complied with these requirements of the policy, they must find for the defendants;” while the former, without setting out’ the terms of the policy, declares that the jury must be satisfied that the plaintiff has fairly and reasonably complied with the terms of the policy.

These two instructions, so far from being inconsistent, are substantially and in effect the same, and intend to assert, and do in effect assert, this proposition of law: That compliance with the requirements of the policy (which is the contract of the parties) is necessary; but that a literal compliance is not necessary, where a substantial compliance has been shown. This proposition is not contested by the defendant, but is affirmed by them in the first instruction given by the court at their instance. It is certainly true, that all that can be required in such a case is (as in any other contract) a reasonable and substantial compliance with the conditions of the policy. Angel on Insurance, § 229; Turley v. North Amer. Fire Ins. Co., 25 Wend. R. 374; 2 Philips on Ins. § 1865; 2d Kern. R. 81.

As to the second instruction asked for by the plaintiff, it is earnestly insisted by the learned counsel for the defendant, that the court below was in error: 1st, because the facts upon which it was hypothecated were not proved, but assumed by the court; and, 2d, because the court undertook to decide a question of fact, while it referred a question of law to the jury.

It is evident that this construction points to that portion of the evidence which is set forth in the record, *in the shape of a correspondence between the attorney for the plaintiff and the agent of the defendant.

The fire occurred on the 31st March, 1867. On the 9th day of April, 1867, preliminary proofs, as they are called, were furnished to the defendant, in the shape of a notice signed by P. M. Colinsky, agent and attorney in fact of Meyer Cohen, and verified by him, together with a certificate of a justice of the peace of the city of Richmond. The notice and certificate are as follows:

“To the Home Insurance Co., New Haven, Conn. :
“I hereby give you notice, as heretofore your agent has been notified, that on the night of the 31st March last, between the hours of two and three o’clock, my store, in the wooden building- 'No. 1715, on the south side of Main street, between 17th and 18th streets, in the city of Richmond, was-fired accidentally or otherwise, by means wholly unknown to me, and in which I had no manner of participation, directly or indirectly, and my stock of dry goods, insured by you to the amount of $53,000, by policy No. 136, and by the Washington Hire Insurance Co., of Baltimore, to the amount of $2,000, was entirely consumed in part, and in part so much burnt as to be of no value whatever. The stock was composed of a general variety of dry goods suitable for this market, and was worth, at the time of the fire, in cash value, at least seven thousand five hundred dollars. A more minute description or account I cannot give, because my books and papers were consumed by the fire. And I demand of you three thousand dollars, the amount insured by you.
“Signed Meyer Cohen, by P. M. Colinsky, agent and attorney in fact.”

’The certificate of "the justice, sent with the above notice, was in these words:

*“I, Augustus Bodeker, a justice of the peace for the city of Richmond, do hereby certify, that I am well acquainted with the character and standing of M. Cohen and P. M. Colinsky, his agent and attorney in fact, in this community, and reside not far from the store lately occupied by him on Main street; that I have en-quired into the circumstances attending the late fire in his store, and believe that he has by misfortune, and without fraud or evil practice on his part, sustained loss to the amount claimed by him.
Given under my hand this 9th day of April, 1867.
Signed, A. Bodeker, J. P. ”

These preliminary proofs were submitted to the agents of the Home Insurance Co. by the counsel for Cohen, accompanied by a letter, explaining that Cohen was, at the time of the fire, and still was, detained in New York by illness; and that, therefore, his application was of necessity verified by his agent and attorney in fact, Mr. Col-insky. To this letter the agents of the Home Insurance Company reply, that they are instructed to refuse to receive any papers furnished by the reputed agent of Cohen, or to acknowledge any liability under the same; and that the company demand proofs in due form, with copies of bills of goods purchased or other authentic evidence of the amount of goods on hand.

A long correspondence follows, in which the attorney of Cohen insists that he has furnished all the preliminary proofs required by the policy, and that it is impossible to furnish copies of bills of goods purchased, or any more minute specification, because of the fact that all the books and papers of Cohen had been destroyed by the same fire which consumed his goods. On the other hand, the agents of the defendants, in their letter, insist that the proofs must be furnished by Cohen himself.

* After many letters had passed between the agents of the company and the attorney for Cohen, there was furnished to the agenta notice, verbatim et liberatim, as the former notice, signed and verified by Cohen instead of Colinsky as agent and attorney in fact. It cannot fail to be remembered, that after the first letter from the agents, demanding copies of bills of goods purchased, and the reply of Cohen’s attorney that this was impossible from the fact that all his books and papers had been destroyed, the agents of the company, though pressed to point out (in the absence of the books and papers) what additional proof was required, failed to indicate the character of the evidence they required, but simply insisted that the proofs must be submitted by Cohen himself.

There is a letter in the record which was given in evidence to the jury, but not alluded to by the counsel in the argument, which furnishes a key to this correspondence, otherwise vague and indefinite. It is a letter written by Cohen to the agents of the Home Insurance Company in Richmond, he then being in New York, dated April 3rd, 1867, in which he informs the agents at Richmond that he had revoked the power of attorney he had given Colinsky, as his agent, to manage his business at Richmond. This letter was, no doubt, received by Alfriend & Son, the agents of the Home Insurance Company, before the application was received from Colinsky, the agent of Cohen, which bears date April 7th, 1867. This accounts for the agents of the Home Insurance Company protesting, from the beginning of the correspondence with the attorney of Cohen, that he would not receive the papers furnished by the reputed agent of Cohen; and insisting to the end, that he must have the preliminary proof, furnished by Cohen himself. The prominent idea in the mind of the agents who conducted this correspondence, as shown by the letter referred to, was, that inasmuch* as Cohen had revoked the agency of Colinsky, and had informed them of this revocation, they were not at liberty to receive the preliminary proof from an agent whose powers had already been revoked, but must require them from the principal. It is true, in their first letter to the attorney for Cohen, they not only say that they will not receive the papers furnished by the reputed agent, but demand “proofs in due form, with copies of bills of goods purchased, or other authentic evidence of the amount of goods on hand.” Rut, as before remarked, it is a pregnant fact which cannot escape observation, that after the attorney for Cohen, in the correspondence referred to, had explained that it was impossible to furnish these copies, because all the books and papers of Cohen had been consumed by the same fire which destroyed the goods insured, the agents never pointed out (though pressed to do so) any additional proof, which would be satisfactory ; but afterwards simply insisted that the proofs must be furnished by Cohen, and not by Colinsky, the agent. It was to this state of facts, disclosed by this correspondence, that the 2d instruction asked by the plaintiff, pointed. The whole correspondence was before the jury as evidence. It was for them to consider and weigh it, along with the other facts of the case.

We think the plain meaning and scope of the 2nd instruction was simply this: That after having furnished the preliminary proofs in the shape of the specification of loss verified by the oath of the plaintiff and the certificate of the justice, if, when called upon by the plaintiff to state whether any farther proof was required, the defendants failed to make any requirement for farther proof, or to make any objection to the sufficiency of the proof, then they must be regarded as having waived their right to demand a more particular specification of their loss.

We think when this instruction is taken in connection *with those which preceded it, it contains no error. Its correctness will be more clearly vindicated when we consider the terms and conditions of the policy upon which this action is founded. We find this provision pointing out what is to be done by the insured before the policy “shall be deemed payable;” and this refers to what is known, in the language of insurance policies, as 1 ‘preliminary proofs.” “All persons insured by this Company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the Company, and as soon after 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 ; they shall also declare on oath whether any and what other insurance has been made on the same property; what was the whole value of the subject insured, &c., &c. * * And also, if required, shall produce their books of account and other proper vouchers, and shall also produce certified copies of all bills and invoices, the originals of which have been lost, and exhibit the same for examination by any person named by the Company; and be examined on oath touching all questions relating to the claim ; and until such proofs are furnished the loss shall not be deemed payable.” Now, the evidence, upon which the instructions were based, clearly shows that, after the first letter rejecting the papers furnished by the reputed agent, as he is designated, and demanding “proofs in due form, with copies of bills of goods purchased, ’ ’ &c., they not only fail to indicate what additional proofs are required, but they never, as it was their duty to do by the express terms of their policy, indicate any person by whom the examination of such proofs was to be made. It was not sufficient that they should require of the assured, copies of invoices, bills, &c., but they were bound to indicate some person before whom they should be exhibited. Having' failed to do that, and having simply insisted *that the proofs should be furnished by Cohen himself, and Cohen having furnished the account and verification of the loss, .in accordance with the terms of the policy, the defendants must be held to have “waived their right to demand a more particular specification of the loss.'' And there was no error in the court so instructing the jury, if they believed the supposed state of facts.

Good faith and fair dealing is of the very essence of the contract of insurance; and where the company puts its refusal to pay upon the ground of a defect in the preliminary proofs, they ought to point out what the defect is — what is necessary to be supplied sq as to give the insured the opportunity. to supply what is required. Failure to do this, or their silence when called upon, will be held to be a waiver of such defect in the preliminary proofs. Angel on Insurance, § 245; Ætna Fire Ins. Co. v. Tyler, 16 Wend. R. 385; Burnstead v. The Dividend Mutual Ins. Co., 2 Kern. R. 81; Turley v. North Amer. Fire Ins. Co., 25 Wend. R. 374 ; Id. 379. And so as in the case before us, where the Company has the right, by the express terms of the policy, to call for the production of copies of bills, invoices, &c.-, where the originals have been lost, before a person to be named by them, and they fail to name such person, the Company will be held to have waived their right to require their production as a part of their preliminary proof.

We are therefore of opinion that there was up error in the court saying that a given state of facts, set forth in the instructions, if found by the jury to be true, constituted a waiver. It is for the jury to find the facts, but what state of facts constitutes a waiver is a question of law for the court.

Another objection to the second instruction given at the instance of the plaintiff, urged by the counsel for the appellant, is, that it submits to the jury a question *of law. The language of the instruction being “then their right, under their policy, if any, to demand, ’ ’ &c., it is insisted that the court left it to the jury to determine the question whether they had any right, under their policy, to demand a more particular specification of loss. We do not think this language is obnoxious to the criticism of the learned counsel. Fairly interpreted, it means the same thing as if the court had said: “then the right, under their policy, admitting they had such right, to demand,” &c. This, we think, is its plain meaning, and that the jury must have so understood it.

As to the .third and fourth instructions, we think they are substantially correct, and we are of opinion, upon the whole case, that the judgment of the Circuit court of the city of Richmond should bé affirmed.

Judgment affirmed.  