Dennis v. Citizens Insurance

4 Pa. Super. 225 | Pa. Super. Ct. | 1897

Opinion by

Reeder, J.,

The plaintiff had his house insured in the defendant company for $400. It was destroyed by fire. After the loss the plaintiff and the defendant’s agents met in Scranton where a proposition was made to the plaintiff to settle for $154, which was agreed to by the plaintiff and a writing executed as follows: “ The total amount I claim and expressly agree to accept from said Insurance Company in full satisfaction and discharge of said loss or damage is $154.” An affidavit was made to the above writing by the plaintiff and it was appended to the plaintiff’s proof of loss. The defendant sent a draft about a week after the execution of the above writing for $154 which the plaintiff refused to accept, and brought suit for the recovery of the entire amount of the insurance. The plaintiff claimed upon the trial that although he had made an agreement to settle for $150 such agreement was procured from him by the misrepresentation and fraud of defendant’s agents and he was therefore not bound by it. This and the actual value of the building destroyed were the only two questions at issue at the trial in the court below, the latter question being one purely of fact was properly submitted to the jury and passed upon by them. The only question for our determination here is whether the evidence of the plaintiff as to fraud, misrepresentation and mistake was sufficient to enable him to avoid his agreement of settlement if believed by the jury. If without mistake, fraud, or deceit he agreed to settle he is compelled to abide by it.

The authorities cited by the appellant clearly establish this as the law, and also that there was good and sufficient consideration for the defendant’s promise to pay the $154. The plaintiff however testified that when he called at the defendant’s agent’s office the agent being also an adjuster for the company at Scranton he notified the company in writing of the total loss of the building by fire. This in the case of a building totally destroyed by fire was sufficient proof of loss, if followed, as is alleged by the plaintiff in this case, by a denial of any liability by the company on the policy and the statement that the company would pay all they would be obliged to pay if they recognized the validity of the policy, as a payment of loss : Vide Roe v. Dwelling House Ins. Co., 149 Pa. 94 (and cases there cited); Weiss v. American Ins. Co., 148 Pa. 349; Fritz v. Lebanon Ins. Co , 154 Pa. 384; McGonigle v. Susquehanna Ins. Co., 168 Pa. 1; Dowling v. Merchants Ins. Co., 168 Pa. 234. It is claimed however that the loss in figures is stated in this first proof of loss to be but $154, and -that therefore there could be no recovery for any amount in excess of that amount. We do not so understand the law unless the statement as to that being the amount of loss was the voluntary act of the plaintiff, and not procured from him by fraud and deceit. The company was notified in writing of the total destruction of a building insured by it for $400. This was sufficient to protect the defendant, and all that the law required of the plaintiff. If by its own misrepresentation it induced him to declare in the same writing that his loss was but $154, it could not afterward declare that the proof of loss relieved it of all liability upon the policy in excess of that amount. The plaintiff testifies that a few days prior to the time when he made out this proof of loss the agent and adjuster induced him to state his loss at $154 by declaring that his policy was void because written by a boy not yet twenty-one years of age and he therefore could recover nothing upon it, as a minor could not make a contract binding upon the company, but he the agent and adjuster would see that the company would do what was right and just in the matter. He told the plaintiff also that he could recover only what he had paid for the building, it being an old building standing upon leased ground, together with the value of repairs he had put upon it amounting to $190 less the amount of depreciation from wear and tear during the time he owned it, which would make the entire amount he could recover for it $154. He told the adjuster and agent that the building was worth $600, that he rented it for $10.00 a month; but the adjuster said that made no difference, that $154 being the amount he had paid for the property less the depreciation, that was all he could legally recover on the contract even if he could recover anything. This was all of course denied not only by the adjuster but by two to three other witnesses who corroborated him, but it raised a question of fact to be determined by the jury, and the jury decided the question submitted to them in favor of the plaintiff. The finding by the jury is that these figures were inserted in the proofs of loss declaring the total loss of the building by fire and the agreement to settle made, by the misrepresentation and deceit of the defendant. Was there sufficient in the plaintiff’s testimony to justify the submission of that question to the jury ? Of this we have no doubt. The plaintiff’s testimony if believed, and the jury did believe it, was sufficient to relieve him from the effect of his signing the contract to settle, as well as to reform the figures he was induced to insert as the amount of his loss in the proofs of loss. We find no error in this record.

Judgment affirmed.