SECTION XIV. If property covered by this policy is so endangered by fire as to require removal to a place of safety, and is so removed, that part of this policy in excess of its proportion of any loss and of the value of property remaining in the original location, shall, for the ensuing five days only, cover the property so removed in the new location; if removed to more than one location, such excess of this policy shall cover therein for such five days in the proportion that the value in any one such new location bears to the value in all such new locations; but this company shall not, in any case of removal, whether to one or more locations, be liable beyond the proportion that the amount hereby insured shall bear to the total insurance on the whole property at the time of fire, whether the same cover in new location or not. New York Standard Form. New in phraseology and arrangement. 1. REMOVAL. General rules. Company not liable. Cross references. 1. General rules. Policy provided that, "in case of the removal of property to escape conflagration, the company will contribute ratably with the assured, and other companies interested, to the losses and expenses attending such act of salvage." A fire originated in a building adjoining the one containing the insured goods, which were removed, and in removal part were lost, wet, stolen, and some burnt. Held, that the clause above referred only to the expenses of saving what had escaped destruction, and that assured might therefore recover the entire loss and damage sustained by such fire, and not the proportion only which the amount insured bore to the whole value of the goods. It seems that in the form adopted in ordinary policies, injuries to goods by wet, or by goods being lost or stolen in the confusion arising from the fire, and of the destruction, injury, or loss of which the fire can be said to be the proximate cause, are within the terms of the policy. Thompson v. Montreal Ins. Co., 6 Up. Can. 2 Q. B. 319. 2.- The circumstances, as they existed at the time, must determine the necessity for removal; and whatever loss or damage is necessarily sustained by such removal, when the danger of its destruction was so direct and immediate that a failure to remove would have been a gross negligence on his part, the insured is entitled to recover. The fire, under such circumstances, may be regarded as the proximate cause of any loss sustained. Case v. Hartford Fire Ins. Co., 13 Ill. 676. 3.- Losses in removing goods from an approaching fire, though not yet caught in the building where the goods are, whether by theft, loss, or destruction, is to be borne by the insurers. Agnew v. Ins. Co., 3 Phil. 193 (Pa.) 4. A policy of insurance contained the following condition: "Where property insured in this company is damaged by removal from a building in which it is exposed to fire, said damage shall be borne by the insured and insurers in such proportions as the whole sum insured bears to the whole value of the property insured, of which proof in due Company Not Liable Cross References. form shall be made by the claimant." A portion of the property insured was wholly destroyed by fire, and another portion damaged by removal. In an action to recover all the damages sustained; held, that the condition meant that the damage occasioned by the removal of the property, should be borne by the parties according to their respective interests or risks, the share of either bearing the same proportions to the whole damage that his interest in the property or risk bore to the whole value, and that the insured could recover only such proportion of the loss by removal as the insurance bore to the whole property at risk at the time of the fire. Peoria Marine & Fire Ins. Co. v. Wilson, 5 Minn. 53. 5.- The damage and expense caused by removing the insured property from an apparently imminent destruction by fire, though it was not in fact burned, is covered by the policy. White v. Republic Fire Ins. Co., 57 Me. 91. 5a.- Plaintiff entitled to recover under a policy, damages resulting from bona fide efforts to save the insured property by removal. McLaren v. Commercial Union Assur. Co., 12 Ont. App. 279 (Can.); below, 7 Ont. 64. 5b.- Fifth statutory condition creates an independent obligation upon the company to ratably contribute to the loss and expenses attending the removal of property to escape conflagration, over and above the amount insured as for direct loss. Id. 6. Whether removal necessary, is judged not by the result but by the circumstances as they appear to the parties acting at the time. Balestraci v. Fireman's Ins. Co., 34 La. Ann. 844. 7. A policy against loss from fire covers all losses clearly resulting from fire and from efforts to extinguish and to remove goods. Lebanon Mut. F. Ins. Co. v. Hankinson, 2 Cent. Rep. 828 (Pa.) 8.- An indorsement on a fire policy on a stock of merchandise that, the goods being about to be removed, the policy "shall cover pro rata in both places during removal, and thereafter in the lastnamed location only," without fixing any limit as to time of removal, does not, unless acted upon, affect the policy or limit its operation to the specific articles on the original premises at the date of the indorsement. *Sharpless v. Hartford F. Ins. Co., 140 Pa. 437; 27 W. N. C. 430; 21 Atl. Rep. 451; 48 Phila. Leg. Int. 298; 20 Ins. L. J. 470. And see Section Six, pages 344, 346. 9. Company not liable. Where neither the stock of goods insured, nor the house containing them, were touched by fire, but the goods were damaged in the removal of them, under a reasonable apprehension that they would be reached by the flames, which had caught the fourth house from that of assured in the same block; held, that the injury sustained by the assured in the removal of his goods was not a loss which was covered by his policies against peril of fire. Hillier v. Alleghany County Mut. Ins. Co., 3 Pa. 470. 10. Evidence. Invoices, books of account, sales, and inventories of stock taken immediately after a fire, and the testimony of the clerks of the assured, are proper evidence of loss by removal of goods when endangered by fire. Case v. Hartford Ins. Co., 13 Ill. 676. 11. Cross reference. Section nineteen. Subd. I. Apportionment. No. 8. SECTION XV. If fire occur the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all encumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of fire; and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify. New York Standard Form. Substantially new in phraseology and arrangement. I. NOTICE OF Loss. II. ORDER AND INVENTORY. III. STATEMENT OR PROOFS OF Loss. IV. PLANS AND SPECIFICATIONS. V. CERTIFICATE. VI. STATUTORY PROVISIONS. I. NOTICE OF LOSS. General rules. Notice through agent. Service by mail. Question for jury. Other special cases. 1. General rules. Where condition of policy requires notice of loss forthwith, it will be understood to require the use of due diligence, and that it shall be given within a reasonable time, under the circumstances. Peoria Ins. Co. v. Lewis, 18 Ill. 553. 2. The condition as to notice is a By Whom Given When Sufficient. orphans' court, assured being dead, and the loss having occurred between the sale and the confirmation. Farmers' Mutual Ins. Co. v. Graybill, 74 Pa. 17. precedent one, non-performance of which at a sale under proceedings in the precludes recovery. It seems that accident or misfortune happening to party bound to perform such a condition, unless caused by adverse party, will not excuse performance. Sherwood v. Agricultural Ins. Co., 10 Hun, 593; aff'd, 73 N. Y. 447, this point not considered. 3.- Condition in regard to notice of loss is precedent to right of action. Ins. Co. v. McGookey, 33 Ohio St. 555. 11.- Notice of loss may be properly given by a party to whom loss is made payable to local agent who issued the policy, same coming to the knowledge of at least the general agent or adjuster of the company. Notice is distinct from proofs of loss; the object is that the company may know that a loss has in fact occurred, that it may take such action as Willis v. Germania is advisable to protect its interests. Watertown Ins. Co. v. Grover & Baker 4.- A substantial compliance with the condition in regard to notice of the loss accepted and acted upon by the company is sufficient. Ins. Co., 79 N. C. 285. Id. 5.- Where condition requires immedi- Sewing Machine Co., 41 Mich. 131. ate notice or proofs, it means as soon as 12.— It seems that an assignee of a polpossible under the circumstances." Cas-icy after a fire may give sufficient notice hau v. N. W. National Ins. Co., 5 Biss. of a loss. 476 (U. S. Cir.), “due diligence" (Continental Ins. Co. v. Lippold, 3 Neb. 391), "within reasonable time" (Rokes v. Amazon Ins. Co., 51 Md. 512.) For a construction of the words " as soon as possible see Home Ins. Co. v. Davis, 98 Pa. 280; 12 Ins. L. J. 449. 6.- Provision requiring immediate notice requires due diligence under all the circumstances. Wooddy v. Old Dominion Ins. Co., 31 Grat. 362 (Va.) 7.- Immediate notice means notice given with due diligence under the circumstances and without unnecessary and unreasonable delay. Sickness may ex.cuse delay. Niagara Fire Ins. Co. v. Scammon, 11 Ins. L. J. 614; 100 Ill. 644; see Sherwood v. Agricultural Ins. Co., supra No. 2. 66 8.- Forthwith and as soon as possible mean within a reasonable time without unreasonable delay and are the equivalent of due diligence. Scammon v. Germania Ins. Co., 101 Ill. 621. 9. By whom given. Where "notice of loss" was given to the company by the assignee of the policy, which had been assigned with consent of the insurer; held, that it was a compliance with the condition, "that all persons insured by the company, and sustaining loss or damage by fire, are forthwith to give notice thereof to the agent." Cornell v. Le Roy, 9 Wend. 163 (N. Y.) 10.- Notice of loss may be given by a vendee who has purchased the property 13. When sufficient. Where policy required "notice of loss in writing within thirty days after the fire," and such notice was given within that time, but was accompanied by a request from assured to the underwriters, to take part in measures instituted for detecting the cause of the fire; held, that the addition of such request did not invalidate the notice. Rix v. Mutual Ins. Co., 20 N. H. 198. 14. The policy required "notice of loss forthwith." Two or three days after the fire assured went to the agent's office and told him the property was burnt, whereupon the agent went to the ruins and examined the premises. Twenty days after the fire a written notice was given to the agent, who told the assured "that the press of business was so great that his matter could not be attended to just then." Subsequently a traveling agent of the company investigated the matter, examined books and papers of assured, and refused to pay the claim. Held, that the notice was sufficient under the circumstances. Phillips v. Protection Ins. Co., 14 Mo. 220. 15.- Where assured, in their declaration, in an action on policy of insurance, alleged the giving of notice of loss, and the defendants did not deny it in their answer; held, that they could not avail themselves of the objection that no notice was given upon the trial. But that even if they could, the notice was sufficient, When Not Sufficient. when given within eight days after the given within a reasonable time under the fire, and five days after the assured knew circumstances, which is all that can be of the fire. New York Central Ins. Co. required. Lebanon Mutual Ins. Co., v. v. National Protection Ins. Co., 20 Barb. Erb, 16 Ins. L. J. 47; 2 Cent. Rep. 783; 468 (N. Y.) 112 Pa. 149. 22.- The purpose of a provision in a policy, that in case of loss or damage the 16.- Where notice of a loss is required to be given to the secretary of the company by the assured, in writing, a writ-insured shall forthwith give notice thereof ten notice to the secretary from the local agent, upon information conveyed to him by the assured, is sufficient. West Branch Ins. Co. v. Helfenstein, 40 Pa. 289. to the secretary in writing, is fully accomplished by sending the notice to the company by name. *Lewis v. Burlington Ins. Co., 45 N. W. Rep. 749; 80 Iowa, 259. 17. A condition that notice of the 23. When not sufficient. The declarloss be given to the company forthwith ation of assured, in an action on a policy requires from the assured due diligence of insurance, alleged that the buildings under all the circumstances of the case; insured had been consumed on the 23d of therefore, notice of a loss at T., given February, 1837, and that he gave notice verbally to the local agent at S., twelve thereof to the defendants on the 2d of miles distant, and by him communicated April ensuing. Held, that this was no to the secretary at L., seventy miles dis- compliance with the condition of the poltant, within five days after the fire, is a icy requiring notice of a loss to be given substantial compliance with the require-forthwith;" that "forthwith" meant ments of the policy, and is in time. Id. immediately, without delay, directly; and 18. The policy required the insured that a notice given thirty-eight days after to give notice of the fire to the "secretary forthwith." The day after the fire the local agent, with counsel, examined the premises, examined the insured under oath, and sent the latter's sworn statement to the secretary next day. Held, a sufficient notice; for the assured may constitute the agent his own attorney to send it, and how it reached its destination being immaterial. Beatty v. Lycom-four months afterwards, was fatal to the ing County Mut. Ins. Co., 66 Pa. 9. 19.- Property was destroyed by great fire in Chicago, October 9, 1871. Notice was given and received without objection on November 13th thereafter. Policy required "immediate notice." Held, notice to be given in sufficient time in consideration of the special circumstances of the case. Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70. the fire, was neither a literal nor a substantial compliance with the condition. Inman v. Western Fire Ins. Co., 12 Wend. 452 (N. Y.) 24. Policy provided "that persons sustaining loss or damage by fire, shall forthwith give notice thereof in writing to the company," etc.; held, that a neglect to give notice of a loss, until more than claim. McEvers v. Lawrence, 1 Hoff. Ch. 171 (N. Y.) 25. Where policy required "immediate notice of loss," and the notice was not given until eleven days after the fire, no sufficient excuse being shown for the delay; held, that the notice was too late, and not a compliance with the provision. Trask v. State Fire & Marine Ins. Co., 29 Pa. 198. 20.— When contract is completed but 26. A requisition in a policy of insurthe policy has not been delivered, al-ance, that the assured shall forthwith though assured is required by its terms give notice of a loss to the company, is to give immediate notice of the loss, a de- not complied with, by giving notice at lay of eighteen days held, under the cir- the expiration of twenty days, although cumstances of the case, not to be a viola-the particular account of the articles lost tion of the condition. Wooddy v. Old Dominion Ins. Co., 31 Grat. 362 (Va.) 21.- When insured lives twelve miles from place of fire, four days' delay in 27.- A notice given six days after ingiving notice of it, which is given as soon jury happening in a city where policy as he learns of it, is sufficient notice, being was issued and where company has a and damaged accompany the notice. Whitehurst v. North Carolina Mut. Ins. Co., 7 Jones, 433 (N. C.) |