Gerhauser v. The North British and Mercantile Insurance Co.

The eleventh condition referred to, reads as follows:

11. "All persons insured by this company, sustaining any loss or damage by fire, are immediately to give notice to the company or its agents, and within fourteen days after such loss or damage has occurred, are to deliver in as particular an account of their loss or damage as the nature of the case will admit of, and make proof of the same by their declaration or affirmation, and produce such other evidence as the directors of this company or its agents may reasonably require; and until such declaration or affirmation, account and evidence are produced, the amount of such loss or any part thereof shall not be payable or recoverable; and if there should be fraud in the claim made for such loss, or false declaring or affirming in support thereof, the claimant shall forfeit all benefit under this policy; and any other policy granted to the insured by this company on any other property will be also null and void. I no claim be made within three months after the fire, the claimant shall forfeit all rights under this policy."

This is one of the conditions upon which the policy was granted, and is to be construed as a part thereof. If its terms have been violated, then by express agreement both policies in suit became null and void. Whether there was such violation, was a matter for for the jury to decide under proper instructions. Those offered by appellant were correct, and should have been given.

It

The modification of the first entirely destroyed its force. rendered that vague which before was clear; and if taken literally, was erroneous, in that it confined the effect of a violation of the condition to the second policy; when, such violation being found, it would affect equally both contracts, by virtue of the express terms of such condition.. The refusal to give these instructions was error, entitling appellant to a new trial. The order denying the same is reversed, and the cause remanded.

By JOHNSON, J., specially concurring:

I agree in the opinion that the District Court erred in the particular matter of modifying the instruction as above shown, and therefore concur in the order reversing the judgment; but in view

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of the probability of a re-trial of the cause, am not satisfied tó give indorsement to the correctness of the two instructions above quoted, in the naked form they were offered, which necessarily would be the effect of a general concurrence in the views expressed in the leading opinion.

It is undoubtedly correct to say that the words therein used, "false,""false declaring or affirming," but follow the language contained in the policies, and hence of the contracts between the parties; yet the Court should accompany the instructions with a proper explanation of their legal effect and meaning, so that the jury might not be misled thereby. For it must be conceded, that although the insured makes a sworn exhibit of his losses, as perhaps is the fact in this case, largely in excess of the value, as shown by the weight of evidence, yet if it result from a mere error of judgment in estimating values-is not done with the design and intent to deceive the insurer as to the extent of such losses-it works no forfeiture under the terms of the contract of insurance. (Angel on Life and Fire Insurance, Sec. 260; Levy v. Baillie, 7 Bing. R. 349.) And these are facts peculiarly within the province of a jury. Hence the Court, in its instructions, should be extremely cautious in preserving the distinction which is taken between a statement which may in point of fact not be true, yet in legal contemplation is not "false," which distinction may not at all times occur to jurors in the absence of explanation.

EVALINE A. WHITE, RESPONDENT, v. ALFRED G. WHITE, APPELLANT.

APPEAL WANT OF AUTHENTICATION OF STATEMENT ON NEW TRIAL. Papers purporting to be a statement and affidavits on motion for a new trial, if they are not authenticated or identified in the manner provided by statute, (Stats. 1869, 226) cannot be considered in the Supreme Court, and should be stricken out on motion made therefor.

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AUTHENTICATION OF STATEMENT ON NEW TRIAL. Where a statement on motion for new trial is not authenticated in the mode prescribed by statute, it is a good ground for denying the motion.

White v. White.

PRESUMPTION AGAINST WAIVER OF ERRORS, It is always the duty of the person wishing to avoid the consequences of error in legal proceedings, upon the ground of waiver by the opposite party, to show such waiver, and not of the person insisting on the error to establish that it was not waived. ISSUES ON APPEAL FROM NEW TRIAL ORDER. The purpose of the legislative provisions in relation to appeals from orders on motions for new trials, is to allow all points which could be urged in the Court below, either for or against the motion for new trial, to be raised on the appeal from the order granting or refusing it, without any further statement.

NAMING A PAPER NOT INDORSING ITS CORRECTNESS AS SUCH. A stipulation reciting the papers by name which the transcript on appeal should contain, and among others the "Statement on New Trial," is not a waiver of objections that the paper purporting to be such statement is not properly authenticated, and therefore not a statement.

APPEAL from the District Court of the Second Judicial District, Douglas County.

The action was for divorce. Judgment was rendered November 23d, 1869, in favor of the plaintiff for a dissolution of the marriage, for one-half of the common property, and for costs. A notice of motion for new trial was served on November 24th, 1869, and a proposed statement filed on December 1st, 1869. On March 1st, 1870, the motion for new trial was denied, on the ground in part that there was no properly authenticated statement, it being neither settled, nor agreed to, nor containing any certificate of the clerk that no amendments had been filed. On April 4th, 1870, after the denial of the motion for a new trial, the clerk of the Court below attached a certificate to the paper to the effect that no amendments had ever been proposed to it or filed.

The defendant having appealed, the plaintiff moved to strike out from the transcript on appeal the papers purporting to be a statement on motion for new trial.

T. W. W. Davies, for the Motion.

I. In order for a statement to be considered by the appellate Court, it must be authenticated as required by law. When agreed to by parties, it must be accompanied with the certificate of agreement; when not agreed to, and submitted to the Court for settlement, it must be accompanied with the Judge's certificate of settle

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ment; if not amended in the time allowed, it must be accompanied with the certificate of the clerk that no amendments to the statement have been proposed, in order to show that the proposed statement has been impliedly agreed to.

II. It is urged that it is too late for us to object to the so-called statement, after arguing motion for new trial in the Court below. This view is untenable; and the more especially so as we urged, in the Court below, that the motion for new trial should be denied on the ground (among others) that the record called a statement was radically defective, being in no wise authenticated. (Lockwood v. Marsh, 3 Nev. 138; Cosgrove v. Johnson, 30 Cal. 509; Vilhac v. Biven, 28 Cal. 409; Kimball v. Semple, 31 Cal. 657; Doyle v. Seawell, 12 Cal. 425; Fee v. Starr & Grimshaw, 13 Cal. 170; Kavanaugh v. Maus, 28 Cal. 261.)

III. In signing a stipulation that the transcript on appeal shall consist of certain papers, we do not waive our right to object to such papers being considered by the appellate Court. (Cosgrove v. Johnson, 30 Cal. 509; Wall v. Preston, 25 Cal. 59.)

IV. In the absence of an authenticated statement, or of a stipulation showing what papers were read or referred to on the hearing of the motion for a new trial below, there is nothing to identify the "affidavits" as having been read or referred to on the hearing of the motion. As to identification, the same may be said of the "minutes of the Court." (Practice Act, Sec. 197; Gordon v. Clark, 22 Cal. 533; Paine v. Linhill, 10 Cal. 370; Stone v. Stone, 17 Cal. 513.)

V. An authenticated record purporting to be a statement on motion for a new trial, may be stricken from the transcript on appeal, on motion. (Kimball v. Semple, 31 Cal. 657.)

R. M. Clarke, against the Motion.

I. Upon the hearing of the motion below, no point or suggestion was made that the statement was not properly authenticated. The motion was set down for argument in open Court, argued upon the merits by counsel for both parties, and taken under advisement by

White v. White.

the Court, without reference to the absence of the clerk's certificate. It would be pressing presumption into absurdity and reason into folly, to hold the absence of the certificate at the submission of the motion fatal to appellant's case. The law will not permit a party to remain silent respecting a curable technical objection, until the defect is no longer remediable, and then avail himself of it. Nor will it permit a Court to cover gross and material error occurring at the trial, by assigning as reason for denying a new trial an objection that the record has not the clerk's certificate appended, when a suggestion of that fact, made upon the argument, must have resulted in removing the objection, and silencing the reason. The rule is universal, that a defect that can be supplied must be taken advantage of before opportunity has passed, or it will be waived.

II. The Practice Act provides that "where no amendments have been filed, the statement shall be accompanied with the certificate of the clerk of that fact." Under this provision, we submit the certificate need not be appended or attached to the statement. If made in proper time, and of record, it is sufficient. It need not be appended to the statement, as it has no material office to perform below; it certifies a negative fact merely, which fact already appears, or rather, may be ascertained from inspecting the records. It performs no material office until it reaches this Court, and as the time when it shall be made is not prescribed, can it be ground for denying a motion for new trial, that it was not made before it could be of material purpose? The law abhors absurdities.

III. We think it clear that the clerk's certificate is for the information of this Court, and may be appended at any time; that, if otherwise, the omission is cured by the appearance and stipulation of parties. (Dickinson v. Van Horn, 9 Cal. 207; Millard v. Halloway, 2 Cal. 119; 28 Cal. 194; Connor v. Morris, 23 Cal. 447; Redman v. Yountz, 5 Cal. 148; Gordon v. Clarke, 22 Cal. 533.)

By the Court, WHITMAN, J.:

This appeal is from the order of the District Court denying appellant's motion for a new trial, and from the final judgment against