American Fire Insurance v. Hazen

| Pa. | Nov 9, 1885

Mr. Justice Clark

delivered the opinion of the court, November 9th, 1885.

This action of debt is brought by W. B. Hazen & Son upon a policy of the American Fire Insurance Company, to recover damages for the loss by fire of the Pine Rifle Flouring Mills in Mercer county. The insurance was affected 1st June, 1882, for one year in the sum of $1,000, as follows: “$200 on the mill building, $75 on boiler and engine, $175 on purifier and bolts; and $550 on buhrs, shafting, belts, husks, waterwheel, and all other machinery used in the manufacture of flour, feed and meal, and contained in the said mill building and boiler house.” The fire occurred 16th February, 1883, and the loss was total, the entire building with its contents having been consumed in the conflagration.

It is provided in the policy, that in the event of a loss by fire, the insured shall forthwith give notice thereof in writing to the company, “ and as soon thereafter as possible render a particular account by separate items, and proof thereof signed and sworn to by the assured,” setting forth certain matters specifically mentioned. The damages are payable sixty days after the loss shall have been ascertained and satisfactory proof thereof made to the company in accordance with the terms of the policy. The notice, it is conceded was given as required, but it is contended that the preliminary proofs were not furnished “ as soon thereafter as possible.”

The fire, ass we have said, occurred 16th February, 1883, and proofs were furnished to the company sometime prior to the 10th May, 1883, but they are alleged to have been defective. A second and more full and formal proof was made 30th August, 1883, but was not submitted to the company until 15th October, thereafter; this was also disapproved as defective in several particulars, and notice to that effect was communicated to the plaintiff; when produced and offered in evidence, however, the latter proof was adjudged sufficient, both in form and in substance, and we do not understand that any exception has been taken to this ruling of the court.

Whether this proof was furnised in a reasonable time, or as soon after the casualty occurred as was reasonably possible, is, therefore, the first question presented. What is a reasonable time, when the facts are ascertained, is ordinarily a question of law for the court, to be determined upon a consideration of all the circumstances; where, however, the facts are not clearly established, or where the question is dependent upon other controverted matters it is, under proper instructions, for the jury: Hickman v. Shimp, 13 Out. 16. In the case at bar, it is alleged on part of the plaintiffs, that W. B. Hazen was at the time of the fire, and for a long time afterwards in a very feeble condition of health, physically and mentally; that two of his sons had died in that spring, and that he was himself seriously sick, having been for two or three months confined to his bed, that his memory was very much 'affected and that from February to August 1883, ho was totally unfit, and did not pretend to do any business whatever; that he was obliged to submit himself to a surgical operation, and that as soon as he was sufficiently recovered, he gave’the matter his attention and made the proofs dated 30th August, 1883. Mr. Cochran, who was his attorney, and prepared the proofs, testifies that he was unable on account of the illness of Mr. Hazen to communicate with him; that Mr. Hazen could give him very little if any aid, and that it was with the greatest difficulty that he was able to obtain the information requisite to comply with the requirements of the company. The forms for proof, it would appear, provided for an estimate of the value of the building by' the builders, and of the machinery by the millwrights, and Mr. Cochran states in detail the efforts which were from time to time made to complete the proofs on this plan; that for a long time he failed to find the,millwrights who had constructed the machinery, that in the meantime he procured an estimate of others unacquainted with it, and that from these the proofs of 30th August, 1883, were made; that subsequently, however, he learned the names and whereabouts of the millwrights who built the machinery, and in order t'o know with certainty that the estimates were correct he held the proofs for the inspection and examination of those who thus had personal actual knowledge of the nature and value of the subject of loss. He says that he exercised reasonable diligence in the matters committed to his charge, and forwarded the proofs as soon as he could. These facts it is true were seriously controverted, but with the weight and conflict of the evidence, and the veracity of the witnesses we have nothing to do.

The company demanded that W. B. Hazen should join in the proofs, the preparation of which under the requirements of the company involved a considerable degree of detail and exactness pf statement. If he was in fact mentally and physically unfit so tó do; if as soon as he was sufficiently restored he set about the business of preparation; if his attorney advanced the work as rapidly as he could under the circumstances, if there was not upon the part of either any neglect or want of due diligence, until the time the final proof was furnished, the delay which ensued could not bar the plaintiffs’ recovery. In this determination of the question, therefore, as to what was a reasonable time, under the circumstances, it was for the court to apply the law, and to submit the facts to the jury, and this, we think, was done.

The rules of the Court of Common Pleas of Mercer county require that the defendant, in a certain class of cases at least, must in an affidavit to be filed in response to tbe plaintiff’s affidavit of claim, allege all the matters of defence upon which he relies, and provides in effect, that he will not be permitted at the trial to set up any matter, not thus specified in his affidavit. ^ The rule referred to has not been printed, but its existence is nowhere denied. The affidavit filed is not before us, but it appears to be conceded that it contained no averment as to incumbrances entered against the property, or that any defence could be taken upon that ground. If the rule of court is as stated the offer of the judgment of Emma Seedle against W. B. Hazen was rightly refused for any other purpose than that for which it was admitted. For the same reason and others which might be stated, the record of the action of the Susquehanna Mutual Fire Insurance Company against W. B. Hazen was also inadmissible.

Upon the seventh assignment, however, we think this judgment must be reversed. The evidence as to the plaintiff’s general reputation as an honest, peaceable, and orderly man may perhaps have had little effect in the determination of the pause by the jury, but it was received against the objection of the defendant, an exception was noted, and it is assigned for error here. It seems to be well settled in Pennsylvania that in civil eases, evidence of general character is not admissible, unless from the nature of the action character is directly drawn in issue, as in libel or slander and seduction. Putting character in issue, as was said in Porter v. Seiler, 11 Harris 424, is a technical expression which does not signify merely that personal reputation is incidently involved in the consequences or results of the action, but that the action in its nature directly involves the question of character.

In Nash v. Gilkeson, 5 S. and R. 352, evidence of the defendant’s good character was rejected although actual fraud was imputed to him in the evidence of the plaintiff; and in Anderson v. Long, 10 S. and R. 55, the plaintiff was refused permission to show good character although the defendant set up his fraud by way of defence. In Porter v. Seiler, 11 Harris 424, an action of trespass was brought to recover damages for an injury wilfully inflicted with a knife, and evidence of the defendant’s good character, as a peaceable man was excluded when offered for the purpose of rebutting malice. So in Zitzer v. Merkel, 12 Harris 408, it was held that evidence of the defendant’s good character was inadmissible in an action on the case for seduction.

In Porter v. Seiler, supra, the authorities are carefully collected, and the whole subject elaborately considered, and we deem it unnecessary, on that account, to enter into any extended discussion of the question here. The rule maybe considered as settled under our decisions, that in civil suits evidence of character is not admissible except where it is directly in issue, and when from the nature of the issues such evidence is of special importance; whether the act charged as complained of be indictable or not is not material. Here the company set up by way of defence, that the plaintiffs or some of them wilfully caused the fire which occasioned the loss, and although a verdict in favor of the company on that ground might affect the character of the plaintiffs, yet their character was in no proper sense put in issue.

The plaintiff’s good reputation for honesty, peace and good order would undoubtedly have been the legitimate subject of proof in their favor, upon the trial of an indictment, but it will not avail them in the trial of an action in enforcement of the contract of insurance, even though the defendants, by their plea, may charge upon them the perpetration of the same crime to relieve themselves from liability.

The judgment is reversed and a venire facias de novo awarded.