Other Special Cases. ive in form or substance, specifically to be produced within a reasonable time. designating the ground of objection, or In this case the original certificate was the defects will be waived. *Travis v. first objected to at the trial, and the obContinental Ins. Co., 32 Mo. App. 198. jection was sustained in the Supreme Court; and immediately afterward, five years after the loss, insured procured another and satisfactory one; held, that this delay was not unreasonable. Columbian Ins. Co. v. Lawrence, 10 Pet. 507 (U. S.) 52.- An insurance company's delay of thirty-seven days, which does not injure the insured, in demanding a certificate of the magistrate nearest the place of the fire, that he has investigated the matter, and believes that, without fraud, the insured has sustained the loss claimed,— is not a waiver of the requirement of such certificate, contained in the policy. * Williams v. Queen's Ins. Co., 39 Fed. Rep. 167; 19 Ins. L. J. 26. 56.- Where assured made statements of loss, and verified them by affidavit; and appraisers also certified to the amount of the loss; but the certificate of the magistrate was defective, in that it 53. An examination, under oath of only stated that he had made diligent inan insured person who has sustained a quiries as to the cause of the fire; withloss, in compliance with a requirement in out making the other statements required the policy, is not a waiver of a provision by the condition of the policy; held, that that the insured shall, when required, it was not a fatal objection when taken furnish a certificate of a magistrate or at the trial for the first time. Bilnotary nearest to the fire, that he has in-brough v. Metropolis Ins. Co., 5 Duer, vestigated the matter and that he be- 587 (N. Y.) lieves the insured has, without fraud, sustained the loss claimed. Id. 54. A defect in the preliminary proofs of loss, consisting of the notary's failure to certify that he was the nearest notary to the place of the fire and that he had no interest in the loss, is waived where the first proofs were returned for correction and the second were retained by the company, and the assured furnished a second copy of a mislaid copy of the proofs at the company's request, and submitted his books and was examined as to the loss, and a certificate to the proofs furnished was prepared by another notary as additional formality, setting forth that he was without interest in the loss, and no notice of any defect was given until after the expiration of the time limited for furnishing the proofs and further attempt at settlement had been abandoned. *Purves v. Germania Ins. Co., 44 La. Ann.-; 21 Ins. L. J. 306; 10 So. Rep. 495. 55. Other special cases. An article provided that "all persons assured by this company, sustaining any loss or damage by fire, are forthwith to give notice to the company; and as soon as possible thereafter, deliver in a particular account of their loss," etc.; "and shall procure a certificate" etc; held, that the words, "as soon as possible," did not apply to the certificate, which was only required 57.— The stipulation in the condition of a policy, that affidavit of the loss shall be made before the nearest magistrate, is merely directory, and cannot be construed as a condition precedent to the liability of the insurer. So that, although two magistrates were nearer than the one whose affidavit was obtained, but they were creditors of assured, that of the third is a sufficient compliance with condition. Etna Fire Ins. Co. v. Miers, 5 Sneed, 139 (Tenn.) 58.- Under the Indiana statute a foreign company cannot insist upon certificate of nearest officer. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315. 59.- Policy required that persons sustaining loss by fire should forthwith give notice as soon after as possible, and deliver a particular account of the loss, stating, etc. They shall also produce a certificate under the hand and seal of a magistrate, etc. Held, that assured was not thereby required to furnish a certificate as soon as possible, but, that if he did so within a reasonable time it was sufficient. Cammell v. Beaver & Toronto Fire Ins. Co., 39 Up. Can. Q. B. 1. Miscellaneous. remedy the defect by procuring the assured after loss. Stat. Ont. 1892, ch. 39, proper certificate. O'Connor v. Commer-§ 33. cial Union Ins. Co., 2 Russell and G. 338 (N. S.) 61.- Refusal of nearest magistrate to give the certificate will not authorize the next nearest who will and does give it. Under such circumstances insured does not show compliance with the condition. Logan v. Commercial Union Ins. Co., 13 Duval, 270 (Can. Sup.) Insurer and insured may by agreement make joint examination, in which event former waives right to make separate examination. Id. 4. Connecticut. When loss payable to a mortgagee, proofs may be made by a third person to be appointed by a judge. Gen. Stat. Conn. 1888, § 2,839. 5. Georgia. Proofs and waiver. Georgia Code, 1882, § 2,813. 6. Indiana. Certificate can not be required. 2 R. S. Ind. 1888, § 3,770. 7. Notice forthwith cannot be prescribed or within a less period than five days. 2 R. S. Ind. 1888, § 3,770. 62. Upon refusal of the nearest notary to furnish the certificate of loss required by an insurance policy, because he is in the employ of the company, the assured is not required to furnish proof of such employment, by Cal. Civ. Code, $ 2,637, which provides that it shall be sufficient to furnish reasonable evidence that the refusal was not induced by any just grounds of disbelief in the facts to be cer-edge and extent of the loss; must be given tified. *Noone v. Transatlantic Ins. Co., 88 Cal. 152; 20 Ins. L. J. 776; 26 Pac. Rep. 103. 63.- The condition requiring a certificate is precedent to right of insured to recover, and the refusal of the magistrate or notary public to give it does not relieve or excuse performance. *Lane v. St. Paul Fire and M. Ins. Co., 52 N. W. Rep. 649 (Minn.) 64. Cross references. Section fifteen. 8. Iowa. Notice of loss must be in writing accompanied by affidavit stating how loss occurred so far as within knowl within sixty days from time loss occurred. No action can be brought until ninety days after such notice. 1 McClain Annot. Code Iowa, 1888, § 1,734. 9. Maine. The matters of notice of loss, proofs, certificate, books of account, and vouchers, examination under oath, are specifically governed by statute in Maine, reading as follows: "In case of loss, insured shall notify company or its agent thereof and within reasonable time deliver to same as particular account of Subd. III. Statement or proofs of loss. the loss and damage as the nature of case Nos. 8, 337. Section eighteen. Xo. 21. VI. STATUTORY will admit, stating his interest in the Payment of loss. property, what other insurance if any, in what manner the building insured or containing the property insured was occupied at time of fire, and by whom and when and how fire occurred so far as he knows or believes; to be sworn to before some PROVISIONS. disinterested magistrate who shall certify that he has examined the circumstances attending the loss, and has reason to and does believe such statement to be true; the insured shall if requested within ten 1. California. Notice of loss. Waiver. 2 Deer. Annot. Civ. Code Cal., §§ 2,633, 2,635. 2.- Proofs. Waiver. 2 Deer. Annot. days after notice of loss, exhibit to agent Civ. Code Cal., §§ 2,634, 2,636. 3.- Certificate. Refusal to give it may be excused or explained. 2 Deer. Annot. Civ. Code Cal., § 2,637. or company his books of account, bills of parcels and any other vouchers in his possession, and shall if requested subunit to examination under oath in the place of Canada. Ontario. Insurer's right to his residence; no other proof of any kind examine property after loss, but not en- shall be required before action against titled to disposition, control, occupation company. All provisions in any policy, or possession, unless undertakes to rein- in conflict with above, are null and void; state or accepts abandonment. Duty of|and all contracts of insurance made, re Miscellaneous. newed or extended in the state or on property within the state are subject to these provisions." R. S. of Maine, 1883, p. 446, § 21. 10. Missouri. Vexatiously refusing to pay loss, subjects company to a penalty of ten per cent. on amount of loss. 2 R. S. Mo., 1889, § 5,927. 11. New Hampshire. Notice in writing within thirty days. Pub. Stat. N. H., 1891, p. 486, § 6. 15. Oklahoma. Notice of loss without unnecessary delay. Stat. Oklahoma, g 3,122. 16. Proofs. Stat. Oklahoma, § 3,123. 17. Pennsylvania. Notice of loss may be furnished by insured or assignee holding as collateral to agent of company who countersigned the policy or other general agent, within ten days from date of fire. 1 Brightly Purd. Dig. Pa. Laws, 1883, p. 925, § 110. 18.- Proofs may be furnished by in 12. North Dakota. Notice of loss. Waiver. Comp. L. Dak., 1887, $$ 4,176, sured or assignee as collateral to agent 4,178. who countersigned policy or other general 13.- Proofs. Waiver. Comp. L. Dak., agent within twenty days from date of 1887, §§ 4,177, 4,179. fire. 1 Brightly Purd. Dig. Pa. Laws, 14.— Certificate. Refusal to give it, etc. 1883, p. 925, § 110. Comp. L. Dak., 1887, § 4,180. 19. South Dakota. See North Dakota. SECTION XVI, The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described, and submit to examinations under oath by any person named by this company, and subscribe the same; and, as often as required, shall produce for examination all books of account, bills, invoices, 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. New York Standard Form. New in phraseology and arrangement. 1. EXAMINATION. consists in tendency to influence conduct II. BOOKS OF ACCOUNT AND VOUCHERS. of company. Claflin v. Insurance Cos., 1. EXAMINATION. General rules. Request for examination. Scope of examination. 13 Ins. L. J. 177; 110 U. S. 81. 2. The provision for an examination is valid and should be enforced. Gross v. St. Paul Fire and M. Ins. Co., 14 Ins. L. J. 158; 22 Fed. Rep. 74. 3. Request for examination. It is not sufficient to allege generally a refusal to submit to an examination; the answer Refusal to answer subsequent ques- should show when and by whom the re tions. Refusal to subscribe. Evidence. Waiver. Other special cases. quest was made, that it was made within the sixty days, and time and place. Aurora Fire Ins. Co. v. Johnson, 46 Ind. 315. 4. It seems that a demand made upon the party to whom the loss is made payable, that the assured shall submit to an examination, is sufficient to impose on him the duty of procuring the assured for that purpose. State Ins. Co. v. Maack or 1. General rules. The object of the provision requiring an examination under oath is to enable a company to possess itself of all knowledge; and all informationens, 9 Vroom, 564 (N. J.) as to other sources and means of knowledge in regard to the facts material to their rights, to enable them to decide upon their obligations, and to protect them against false claims. Every interrogatory relevant and pertinent is material in the sense that a true answer is of the substance of the obligation of the insured. A false answer as to a fact material to the inquiry knowingly and wilfully made with intent to deceive is fraudulent; and such intent is implied from falsity to knowledge of party and being wilfully made; materiality 5. Mere informal conversation declarations that company desires the assured to submit to an examination does not impose that duty upon him. The demand for an examination must be made with such clearness and distinctness that the party shall be fully informed that the company means to insist upon having it. Id. 6. Scope of examination. A condition that the loss shall not be payable until the assured, if required, shall submit to an examination under oath; held, the Refusal to Answer Subsequent Questions assured cannot be compelled, as a condition of recovery, to state on what terms he had settled with other companies. Ins. Cos. v. Weides, 14 Wallace, 375 (U. S.) 7. When policy provides that "as sured shall submit to an examination or examinations under oath, and subscribe same when reduced to writing," assured is bound only to answer such questions as have a material bearing upon the insurance and the loss. If he declines to answer some of the questions put to him, and if an appellate court cannot perceive that such questions have such bearing, it will assume that he was justified in his refusal to answer. Titus v. Glens Falls Ins. Co., 81 N. Y. 410. Other Special Cases. under the policy. *Grigsby v. German Ins. Co., 40 Mo. App. 276. 11. Evidence. The affidavit and examination, under oath of assured, having been admitted without objection on the part of defendants, is competent evidence for the consideration of the jury, on the question of the amount of the loss. Moore v. Protection Ins. Co., 29 Me. 97. 12. Assured is not estopped by a statement made by him in his examination under oath, from establishing the truth to the contrary upon a trial. Germania Fire Ins. Co. v. Curran, 8 Kans. 9. 13. Waiver. If insurer refuse to pay a loss because assured refused to submit to an examination under oath, as required by the policy, they cannot afterwards object to his failure to comply with other requisitions of the policy as to mode of proof. Phillips v. Protection Ins. Co., 14 Mo. 220. 8. Refusal to answer subsequent questions. The condition requiring assured to "submit to an examination under oath;" held, to have been complied with after submitting to one examination, although he refused to answer un- 14.— Where company, with knowledge der oath questions asked subsequently. of the facts constituting breach of a conMoore v. Protection Ins. Co., 29 Me.dition, requires assured to submit to an examination, and he does so under clause 97. 15.- When company demands that the assured shall submit to an examination under oath before formal proofs of loss have been made, and he submits, and answers all questions propounded to him, there is a waiver of proofs, unless assured is notified that the company requires formal proofs in addition to the examination. Badger v. Phænix Ins. Co., 49 Wis. 396. 9. Refusal to subscribe. It was stip-in policy in reference thereto, it operates ulated in an insurance policy, that the as a waiver of the forfeiture. Titus v. insured should, if required, submit to an Glens Falls Ins. Co., 81 N. Y. 410; s. P. examination, under oath, by the agent of Northwestern Mut. Ins. Co. v. Germania the company, and answer all questions, Fire Ins. Co., 40 Wis. 446. etc., and subscribe such examination when reduced to writing, and until examination, being required, was had, the loss should not be payable. In an action upon the policy, it appeared that such an examination, being required, had been in part had, and reduced to writing, but not subscribed, and without objection from the insured, was adjourned for two or three weeks, when it was to be completed; but that when applied to for that 16.- Examination of assured by adpurpose by the agent, within the time juster waives condition in regard to limited, the insured refused to submit to notice. Badger v. Glens Falls Ins. Co., a further examination, or to subscribe 49 Wis. 389. Note. The change in the that already taken. Held, that such re-language of the policy (see Section Eightfusal, under the circumstances of the case was unwarranted, and therefore, by the terms of the policy, the loss had not yet become payable. Bonner v. Home Ins. Co., 13 Wis. 677. 10- Refusal to subscribe an examination on oath as required by the terms of a policy in order to permit a recovery, after reasonable time to consult his attorney, will prevent the insured from recovering een, infra) was doubtless made in view of preceding cases as to effect of waiver, perhaps more especially the case of Titus v. Glens Falls Ins. Co., supra. No. 14. 17. Other special cases. Where the assured is required, besides furnishing preliminary proofs, to submit to an examination under oath, and his books are withheld on such examination, so that he speaks from memory only, his mistakes |