The record-union., 1891-03-09
SUPREME COURT DECISIONS.
Filled March 2, 1S91.J
DEPARTMENT. ONE

1KANSATLANTIC INSURANCE
COMPANY, Appellant.
This was an action upon a policy of in
surance. The plaintiff had verdict and
Judgment for S3,117 So and the defendant
appeals from such judgment, and from an
order denying its motion for new trial.
The grounds which are relied upon for
reversal are the following:
Flrst-It is argued that there was
breach of warranty in relation to the dis
tance OF neighboring buildings from that
which was covered by the insurance.
The policy contained the following pro-
visions: "Fourth-The application and
survey upon which the issuance OF a
policy is predicated shall be con-
sidered part of it and a
warranty by the assured. If the
assured, by written or verbal appli-
cation for insurance, or by survey, plan
or description or otherwise, makes any
erroneous representations, or omits to
make known any fact material to the
risk, then, and in every such
case, this policy shall be void"
The application upon which the policy
was issued stated that the building in
sured was ninety feet from other build
ings, but after answering the various
questions contained the following: And
the applicant hereby covenants that the
foregoing is just, full and true exposition
of all the facts and circumstances in re-
gard to the condition, situation, value and
risk of the property to be insured, so Jdl'
as the same are knOlCn to the applicant and
material to the risk"
The evidence showed very clearly that
the building insured was not ninety feet
from other buildings, but was somewhat
under eighty feet therefrom. And i'll re-
lation to this the Judge instructed the
jury as follows:
''The defendant in this action seeks to
avoid its liability under this policy upon
the ground, among others, that in the ap-
plication originally made the applicant
stated that the building nearest to the one
destroyed was ninety feet away, whereas
defendant now claims that it was but
seventy-two feet distant, and that there
was another building only seventy-four
feet away. 1t is for you to determine
from the evidence whether the distance
was or was not ninety feet. 1t you find
1t was not, it is for you to determine
whether such misrepresentation was or
was not material, and upon this point you
must consider all the evidence relating to
the materiality of the statement.
IF you find that the nearest building
was not ninety feet away, and that this
was a material statement. it rendered
the policy void, and the plaintiff could
not recover unless the defendant waived
its right to declare the policy void"
If the provisions of the policy and APP
"
warranty that the building insured was
ninety feet away from other buildings,
the above instruction was both erroneous
and injurious to the appellant. But in
our opinion, although at first view there
is some want OF harmony between such
provisions, they do not show that there
was any such warranty as is contended
for by the appellant. The application
first states that the building insured was
ninety feet from other buildings, but con-
cludes with covenant or agreement that
the statements therein contained are true
$50 far as the same are knOac7l to the 0p-
Plicant." The different provisions must
be read together; and, when SO read, we
think it clear that there was no warranty
that the building insured was ninety feet
from other buildings. The case of Ma
tional Bank VS.. Insurance Company (95
L. s. 673) is precisely like this case, ex-
cept that the statement which was claimed
to be untrue was as to the value of the
property. 1t is true, as claimed by the
appellant, that value depends good deal
upon opinion and probability, and is not
like distance, matter which can be ac-
curately ascertained. Bnt the court ex-
pressly stated that its opinion did not
proceed upon such construction of the
policy. 1t said: "We rest the conclusion
already indicated upon the broad ground
that when policy of insurance contains
contradictory provisions. or has been so
framed as TO leave room for construction,
rendering it doubtful whether the parties
intended the exact truth of the appli-
cant's statements to be a condition pre-
cedent to any binding contract, the court
should lean against that construction
which imposes upon the assured the obli-
cations of warranty"
If there was no such warranty as is
claimed by the appellant the charge was
more favorable than it had a right to ex-
pect; and it could not have been injured
thereby.
There is nothing in the evidence tend
ing to show that the plaintiff knew ex-
actly what the distance was. The differ
ence between ninety feet and seventy
four or Seventy-two feet is not one which
the plaintiff would be apt to know; and
what evidence there is on the subject
tends to show that she did not know it.
Second-The policy provided that the
loss, if any, was ''to be paid within sixty
days Of this company shall so elect after
due notice and proof thereof made by the
assured and received at the office in ac-
cordance with the terms of this policy
hereinafter mentioned" 1t also con-
tanned a provision that in case of loss the
assured should forthwith give notice of
such loss, land shall also produce a GER
tificate under the hand ana seal of a mag
istrate or notary public tnearest to the
place, not concerned in the loss as cred
ttor or otherwise, nor related to the as
sured), stating that he has examined the
circumstances attending the loss, knows
the character and circumstances of the
assured, and verify believes that the as
sured has, without fraud, sustained loss
on the property insured to the amount
which such magistrate or Notary Public
shall certify"
In this connection it may be stated that
the Civil Code has the following proyis-
ion, viz:
Section 1887. 'Ifa policy requires. by way
of preliminary proof of loss, the certifi-
cate or testimony of a person other than
the insured, it is sufficient for the insured
to use reasonable diligence to procure it.
and in case of the refusal of such person
to give 1t, then to furnish reasonable evil
dence to the insurer that such refusal was
not induced by any just grounds of dis
belief in the facts necessary to be certi-
fied.'
The plaintiff produced to the company
the certificate of one Ramage to the facts
required to be stated. But it is conceded
that he was not the nearest magistrate or
notary, and that the person who was such
Zone Turner) had been applied to, and had
refused to give the certificate. In connec-
tion with this refusal the plaintiff intro
duced evidence tending to show that her
attorney had informed the company's ad-
juster that ''the reason why the certificate
was not signed by Mr.. Turner was that
he had been engaged by the companies or
had been employed by the companies to
take some affidavitS for them, and for that
reason, as / had been informed by Mrs.
Noone, he had refused to sign them"