OPINION OP THE .COURT.
MILLS, C. J.Fifty-seven grounds of error are assigned in this cause, and as is usually the case, when the assignments are so numerous it will not be necessary to discuss them all. It will perhaps be proper for us, in view of the very many assignments, to call the attention of the members of the bar to what the Supreme Court of the United States say in regard to making so many assignments of error: ‘ ‘ Other errors are assigned which it is unnecessary to notice in detail. Most of them are covered by those already discussed, and some of them are so obviously frivolous as to require no discussion. It is to be regretted that defendants found it necessary to multiply their assignments to such an extent, as there is always a possibility that, in the very abundance of alleged errors, a substantial one may be lost sight of. This is a comment which courts have frequent occasion to make, and one which is too frequently disregarded by the profession.” Grayson v. Lynch, 163 U. S. 468.
We have fully considered all of the errors assigned, and while we do not deem it necessary to refer in this opinion to each of them separately, we have endeavored to cover all of them which we deem to be material to a proper determination of this case, although as we have just quoted, “in the very abundance of alleged errors, a substantial one may be lost sight of.” We trust, however, that such is not the case.
The policy sued on is what is known in insurance circles, as a “New York Standard Form Policy.”
1 Some six or seven of the assignments relate to an alleged variance between the declaration and the proofs; the declaration alleging that the insured had “done and performed all and every act and thing upon his part required to be done . . . both precedent and subsequent to the occurrence of said fire.” This the defendant below denies in its answer, and alleges that the liability was avoided because the building was left unoccupied for ten days Avithout permission being endorsed on the policy and also because the insured did not within sixty days after the fire give a sworn statement to the company as to the origin of the fire, etc. In his replication, appellee denies that the building was vacant for ten days, and avers that he did give the defendant a verified statement of his loss.
Among the allegations required in a complaint on a policy of insurance are an insurable interest in the insured in the property destroyed, consideration and issuance of the policy, a loss within the terms of the contract, and the amount thereof, performance of the conditions of the policy and a breach of the contract on the part of the insurer. Encyl. of Pleading and Practice, vol. 11, page 411, and cases cited under note 1, page 412. The plaintiff, however, need not negative the performance of the condition subsequent to the loss to entitle him to recover. All that is necessary for a plaintiff to do in declaring on a contract of insurance is to set forth so much of it as will show a right to recover. Whittle v. United F. Ins. Co., 38 Atlantic 498; 2 May Ins., sec. 589; 2 Greenleaf, Ev. (13 Ed.), sec. 376. It follows therefore that the various conditions and stipulations of a policy which are in the nature of conditions subsequent and go to defeat the liability of the insurer, are matters of defense, and have no place in the declaration. Lounsbury v. Protection Ins. Co., 8 Conn. 459.
It is in evidence that on the same or the next day after the fire occurred, the appellee, who was the agent of the defendant company at Gallup, notified the manager of the insurance company at San Francisco, of the loss, stated that it was total and that the origin of the fire was unknown, and that on the nineteenth day of August, the manager of the company wrote Dr. Robinson that he had received the loss advise, and that he had immediately wired a special agent and adjuster of the company, and that said adjuster went to Gallup to investigate the loss, and that on the twenty-fifth day of August, 1896, an agreement was signed that the adjuster should proceed to investigate and ascertain the loss and adjust the same. The evidence further shows that the adjuster would not adjust the loss, but refused to do so, and that the company would not pay for any loss, but denied all liability.
The instruction given by the court covers this point in our opinion correctly. It was as follows:
“For a further defense the defendants plead in the fourth paragraph of their answer, that one of the provisions of the policy is that within sixty days after the fire, the plaintiff or the assured must have furnished the defendant with proofs of loss. The court instructs you that if you find from the evidence that shortly after the time of the loss and Avithin sixty days thereafter the plaintiff notified the defendant company, the Palatine Insurance Company, on blanks furnished to him for that purpose that the fire had occurred, and that in pursuance to said uotice, the defendant company sent their special agent and adjuster or investigator to adjust' or investigate the claim of loss, and investigations were then taken up by such employee or agent of the company, that such fact is a sufficient notice to bind the de-fenclant company, and the plaintiff would be entitled to recover under bis contract, if from all the other facts and circumstances in evidence in the case you conclude from a fair preponderance of the evidence that plaintiff is entitled to recover at all. However, if the jury find that this provision of the contract had been violated by the plaintiff, they will find the issues for the defendant. ’ ’
The evidence shows that notice of the loss was sent to the appellant, and that pursuant to such notice they sent their adjuster to Gallup and that a written agreement was there entered into by him and the-insured that the loss should be investigated, but that the adjuster left Gallup without making such investigation and that the company refused to pay the loss. Even if no sworn statement of the loss was sent to the insurance company within sixty days after the loss, as called for by the policy, the insurance company waived such notice by sending their adjuster to Gallup. The Supreme Court of Nebraska says, on this point: — “It is true that the contract between the insured and the insurer under which the arbitration took place provided that the arbitration should not be be construed as a waiver of any of the rights or defenses of either party, nor as either an admission or denial of liability on the part of the insurance company; but this only meant that the arbitration should not be conclusi ve evidence of a waiver on the part of the insurance company of any legal defense it might have to a suit upon the policy. The arbitration, then, while not conclusive evidence, was, we think, competent evidence for the jury to consider in determining whether or not the insurance company waived the violation of the Fire Co. v. Globe L. & F. 44 Neb. 380.
A substantial compliance with the terms and conditions of the policy as to notice and proof of loss is all that is required. Am. & Eng. Encyl. of Law (2 Ed.), 336. Unless verification or further information is demanded, the objection that the notice of loss is not verified is waived. Hanover Fire Ins. Co. v. Lewis; 28 Fla. 209. There is no intimation anywhere in the record-that the insurer requested further or additional proof of the loss than that given by the insured, and the sending of the adjuster to the place of the fire waived any further notice. Home Ins. Co. v. Unger, 93 Ill. 271; Germania Fire Ins. Co. v. Stewart, 13 Ind. App. 627; Harris v. Phoenix Fire Ins. Co., 85 Iowa 238.
Our statutes provide, sec. 2685, sub-sec. 78, that “no variance between the allegation in the pleading and the proof shall be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits,” and in the case at bar we can not see that the insurer has been so misled. It has notice of the total destruction of the building-insured, sent its adjuster to Gallup, who tried to secure evidence that the building had been burned through the act or procurement of the insured and by its acts led the appellee to believe that no further proofs of loss were required. The mere failure to verify the notice of loss under the facts in this case, if such verification was not made, were waived by the insured. We can see no substantial variance which affects the merits of this case between the pleadings and the proofs adduced on the trial.
2 A very considerable part of the errors assigned and which are alleged in various ways, are that the company was released from liability because a fraudulent and untruthful statement was made as to the value of the building insured and because the building was left unoccupied for ten days, without having the right to so leave it unoccupied endorsed on the policy, and also because the insured did not send a sworn statement to the company of the loss, etc., within sixty days, as required by the policy.
The last of these propositions we have discussed previously in this opinion when we considered the alleged variance between the pleadings and the proofs. As to the others it is only necessary for ns to say that the testimony is somewhat conflicting the appellee and his witnesses swearing that the building destroyed wras worth between $4,000 and $2,500, and the witnesses for the appellant swearing that it was worth much less than that sum. It is in evidence over the objection of the appellant however, that the building rented for $52.50 per month. As there is evidence to sustain the finding of the jury on this point, according to our well established rule, we will not consider and pass on the weight of the evidence, as that duty devolved upon the jury.
As to the allegation that the building was vacant ■ for ten days, contrary to the provisions of the policy, the same rule must govern us as that just announced, except that the evidence that it was not so vacant for that length of time seems to be proved by a large preponderance of the evidence.
3 But one more question remains for us to consider in discussing this case, and that is, should the judgment in this case be set aside and a new trial ordered because the jury failed to answer the questions submitted to them by the appellants, but to each of such questions said: “We can not answer.”
The right to submit questions of fact to be answered by the jury at the same time that they return their general verdict is given in this Territory by statute. Compiled Laws of New Mexico, Revision of 1897, section 2993. (In Schofield v. Territory, 9 N. M. 540 this section is erroneously printed as 3993.) This section of our statutes which is similar to that of many of the States of the Union, must be interpreted in the same way that it is in other jurisdictions where it is in force. The object of allowing special questions to be put to the jury is for the purpose of enabling the court to know whether the jury have properly considered the facts of the case as shown by the evidence, in arriving at the general verdict returned by them. International Wrecking etc., Co. v. McMorran, 73 Mick. 467. The submission of questions to tke jury is usually keld to be dis-cretional with tke court,- neitker party kas tke rigkt to dictate tke terms of any particular question put to tke jury, but it is tke province of tke court to determine wkat particular facts tke jury skall find specially, but tkis discretion is not however purely arbitrary, but it is a sound legal discretion, subject to review on appeal. Peninsular Land Transportation, etc., Co. v. Franklin Ins. Co., 35 W. Va. 666; McKelvey v. Chesapeake, etc., R. Co., 35 W. Va. 500. In other words, the court is not required to submit improper questions to tke jury because one of the parties to the cause requests him to do so, nor to give suck as are proper, in tke exact form in which they are presented by counsel. Micky v. Burlington Ins. Co., 35 Iowa 174; Nicholas v. State, 65 Ind. 512.
In the case at bar seven questions were submitted by the court to the jury, at the request of the appellant, which were as follows, to-wit:
“1. Have any of the conditions of the policy sued on relating to the proceedings of the assured after a loss thereunder been waived by the insurance company?
“2. If you answer, No. 1 in the affirmative, state specifically each condition waived.
“3. If you answer that any conditions have been waived, state particularly when and in what way and by whom the conditions were so waived.
“4. Did the plaintiff render to the defendant an account of the loss claimed to have been sustained?
“5. If you answer No. 4 in the affirmative, then state particularly when and where said account was rendered and to whom it was so rendered.
“6. Did the defendant company waive the proofs of loss required under the policy?
“7. If you answer interrogatory No. 6 in the affirmative, state fully in what manner, when, where and. by whom the proofs of loss were so waived.”
We think that the court Avould have been justified in refusing to give all of these questions, except the fourth, as all of the others are argumentative, and several of them would require, if answered, conclusions of law and facts. Questions like these serve rather to entrap the jury than to help them and subserve the ends of justice. If possible questions submitted to a jury should be so framed as to admit of an answer of either “Yes” or “No.” Special interrogations submitted to a jury are not intended to be in the nature of a cross-examination of the jury. Blesch v. Chicago, etc., R. Co., 48 Wis. 168; Haley v. Jump River Lumber Co., 81 Wis. 412. To each of the above questions the jury replied, “We can not answer.” The attorney for the appellant requested the court that the jury be sent out again to answer the questions but the court overruled the motion, discharged the jury and entered a judgment on the general verdict, appellant excepting.
Even after submitting questions to a jury the court may, if it see fit, withdraw such questions from the consideration of the jury. This is held by so high an authority as the Supreme Court of the State of Massachusetts, and it is announced in Florence Match Co. v. Doggett, 185 Mass. 582, that when questions in writing have been submitted to a jury, and the jury returns a general verdict ignoring the questions, it is within the discretion of the trial judge to withdraw the questions and accept the verdict as returned, and it is also held that the failure of a judge to compel the jury to answer questions is in effect a withdrawal of the questions and is the same as though the court had refused to submit them in the first instance. Cleveland, etc., R. Co. v. Doerr, 41 Ill. App. 580; Kansas Pac. R. R. Co. v. Reynolds, 8 Kan. 623; Johnson v. Hubbard, 22 Kan. 277; Wyandotte v. Gibson, 25 Kan. 236; Moss v. Priest, 1 Rob’t (N. Y.) 632.
In passing upon this case we do not wish to he understood as holding that juries in this Territory, need not answer proper questions which are submitted to them by the .court for answer, but we do announce the doctrine to be that the court should only submit to the jury for answer, questions which are properly framed and the answers to which are vital to the proper determination of the matter in litigation; and we further hold, that if the court inadvertently submits to the jury questions which on mature deliberation it concludes are not proper ones to be submitted to them, that it has the inherent power to withdraw such questions from their consideration, or what is equivalent to such Avithdrawal, to receive the general verdict, and allow them to disperse without answering the questions.
We have gone over this case with a great deal of attention. It seems to have been carefully tried on both sides, and the learned judge below seems to have conducted it with the utmost fairness from beginning to end. The only error which is at all apparent on the record which would in any mannér authorize a reversal, was the instruction to the jury, that they were “not required to answer any special questions unless you can make such answer upon the testimony you have heard; and if any question is submitted and no sufficient evidence appears upon which to answer, you, the jury can say ‘don’t know,’ or ‘we can not answer.’ ” and that the jury returned the answers, “We can not answer,” to the questions.
We do not think that this instruction was proper, as the court should have submitted no questions to the jury save those which they could answer from the evidence, at the same time we do not think this instruction and the answers returned by the jury are so vitally wrong as to justify us in reversing this case and sending it back for a new trial.
On the whole we can not see that the ends of justice would be subserved by a reversal of this case, and the same is therefore affirmed.
McMillan, McFie and Parker, JJ., concur. Crumpacker, A. J., having tried this case below, did not participate in this opinion.