Calhoon v. Girard Fire & Marine Insurance

64 Pa. Super. 82 | Pa. Super. Ct. | 1916

Opinion by

Williams, J.,

The only assignment of error is to the action of the court below in refusing the motion to set aside the judgment of compulsory nonsuit.

The plaintiffs held a policy of insurance of the defendant company for $1,000 insuring personal property. • A fire occurred April 15,1912, substantially destroying the property insured. The local agent of the insuring company was notified the same day. An inventory of the goods destroyed with prices attached, dated at Lowell-ville, Ohio, entitled “Itemized Statement of goods burned April 15, 1912” was furnished to the adjuster June ,7, 1912. The adjuster replied June 11,1912, that the statement sent could not be accepted as satisfactory. Nothing further was done by the plaintiffs within the 60 days.

The policy,of insurance held by the plaintiffs upon which suit was brought provided that if a fire occur the insured should, inter alia, (a) “give immediate notice of any loss in writing to the company.......” This was done; the company was notified through its local agent on the day the fire occurred, viz, April 15, 1912. (b) “make a complete inventory......stating the quantity and cost of each article and the amount claimed thereon.” The inventory wap made up and although not required by the policy, it was sent to the' adjuster at Cleveland, Ohio, on June 7, 1912. (c) “render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property, the dash value of each item thereof and the amount of the loss thereon; all encumbrances thereon, whether valid or not covering any of said property; a copy of all -descriptions and schedules in said policies; any change in the title, use, occupation, location or exposure of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of the fire.”

It-was a condition precedent to recovery that the plaintiffs should comply with the terms of the policy: Cole v. Assurance Co., 188 Pa. 345; see also Gould v. Dwelling house Ins. Co., 134 Pa. 570.

The motion for the nonsuit was based upon the failure of the plaintiffs to. comply with one of the above recited provisions (c) of the policy to furnish to.the company within 60 days of the time when the fire occurred, a statement with the proofs of loss. ‘ This statement of the origin of the fire, interest of the insured, etc., was not furnished. Without.furnishing this statement the plaintiffs could not recover, unless it had been expressly or impliedly waived by the company. No evidence of any express waiver appears in the record. The plaintiffs contended that the inventory or “itemized statement of goods burned” was in effect a.compliance with the terms of the policy.

It is true that if this was the case of a building or a single chattel, notice of the fire and of thq total destruction of the property might be sufficient, but as was said by Morrison, J., in Lapcevic v. Lebanon Mut. Ins. Co., 40 Pa. Superior Ct. 294 (298) : “Where a building, or a single chattel, is insured and totally destroyed by fire, it is easy for the insurance company to procure evidence as to the character and value of the building or chattel, but in the case of a stock of merchandise in a store, it is very different. It would be dangerous to establish a rule in the latter case that if the insured gave prompt notice that his entire stock of goods were burned and the company tried to make a compromise with him, which he rejected, that he would then be relieved from filing the proofs of loss required by his policy. Such a rule would open the door wide for fraud and trickery.”

The inventory or list of goods with value sent by the plaintiffs did not take the place of the proofs of loss; and of this there was notice to the plaintiffs.

Upon all the facts and inferences to be drawn therefrom there was not sufficient evidence to sustain a verdict, and the learned court below was clearly right in entering the nonsuit and refusing to take it off.

. The assignment of error is overruled and the judgment is affirmed.