Brown v. Hartford Fire Insurance

But a single question is presented for our consideration on this appeal. The only claim made by the appellant is that the plaintiff failed to produce a proper certificate of the magistrate, notary public, or commissioner of deeds nearest the place of the fire, as required by the policy upon which this action is brought; that the production of such a certificate was a condition precedent to the plaintiff’s right of recovery; and that the trial court erred in not so holding, and in refusing to nonsuit the plaintiff upon that ground. That the production of such a certificate was a condition precedent to the plaintiff’s right of recovery, we have no doubt.- It is not, however, claimed that the plaintiff failed to furnish a certificate, nor that the magistrate who made the certificate produced was hot nearest the place of fire, or that he was concerned in the plaintiff’s loss, or related to the assured. The sole claim of the defendant is that the last certificate produced did not certify that the magistrate verily believed that the assured had, without fraud, sustained loss on the property insured to the amount claimed by said assured. The plaintiff made and delivered to the defendant an account of his loss, in which he claimed that the amount of such loss was $2,200, and with this account he produced to the defendant the certificate of the nearest magistrate that he was acquainted with the character and circumstances of the assured, and, having made diligent inquiry into the facts set forth in the foregoing statement, he believed and was satisfied that the said assured had, without fraud, sustained by said described fire loss on the property insured to the amount of-dollars, the sum stated in his affidavit of loss. While this certificate did not perhaps, strictly, comply with the provision of the policy, it was a substantial compliance with it, and sufficient. The only specific objection made to the proofs of loss furnished was that they did not contain a particular account of such loss. This account of loss and certificate were retained by the defendant. Subsequently the plaintiff furnished an additional account of loss, which contained a detailed statement of the property destroyed, and in which he also claimed that the amount of his loss was $2,200. With that account another certificate by the same magistrate was produced, by which he certified that he had examined the circumstances attending the fire or damage alleged, and that he was well acquainted with the character and circumstances of the assured, and Verily believed that he had by misfortune, without fraud or evil practice on his part, sustained loss and damage on the property insured, amount unknown to him. The last certificate, if considered alone, was not strictly such as was required by the provisions of the policy. If the first certificate produced by the plaintiff was superseded by the last, so that th'e first must be wholly disregarded, and not treated as a part of the proofs of loss furnished by the plaintiff in pursuance of the requirements of the policy, then, perhaps, the defendant’s claim should be sustained. If, however, the first certificate was not superseded by the second, and is still to be treated as a part of the plaintiff’s proofs of loss, then that provision in the policy was substantially complied with, and the court properly refused to grant the defendant’s motion for a nonsuit on that ground. Hence the real question to be determined is whether the first certificate furnished is to be still regarded as a part of the plaintiff’s proofs of loss.

By an examination of the provision of the policy under consideration, it *233will be seen that the certifidate of the magistrate does not necessarily form any part of the account of loss required. It, at most, need only refer to the amount claimed by the assured. It is a portion of the plaintiff’s required proofs of loss, but may, and we think does, exist independent of the account of loss. The first certificate was received by the defendant, and retained by it without objection. It sufficiently certified as to plaintiff’s loss to the amount claimed by him. The amount claimed was not changed by the additional account furnished by the plaintiff. We are of the opinion that, when the plaintiff produced to the defendant the first certificate of the magistrate, it was a substantial compliance with the requirements of the policy, and that the production of a second certificate, if defective, did not render the first unavailing. Moreover, we are of the opinion that as the defendant retained the account of loss and certificate first delivered, and required an additional and more particular account of loss, which was furnished, that both of the accounts of loss and both of the certificates furnished should be taken together, and be regarded as together constituting the proofs of loss furnished by the plaintiff, and that the last proofs furnished did not in any manner supersede or nullify the first. When considered together, we think the magistrate’s certificates must be regarded as a sufficient compliance with the requirements of the policy, and that the court properly so held. If correct in these conclusions, it follows that the judgment should be affirmed. Judgment and order affirmed, with costs.

Hardin, P. J., concurs.