65 Pa. Super. 347 | Pa. Super. Ct. | 1916
Opinion by
This action was brought to recover insurance premiums on policies covering live stock. The court below refused to enter judgment for want of a sufficient affidavit of defense and in so doing we do not think it committed error. The substantial defense presented by the. affidavit is the claim that by reason of the plaintiff’s breach of contract in its failure to perform by paying the amount due for the loss of an animal the plaintiff can-celled and annulled the policy and that all rights of plaintiff thereunder ceased and determined. The refusal without right to pay loss occurring under a policy of insurance may at the option of the insured be treated as an avoidance or rescission of the contract and entitle the insured to recover damages for such repudiation. See American Life Ins. Co. v. McAden, 109 Pa. 399; Kerns v. The Prudential Ins. Co., 11 Pa. Superior Ct. 209. Failure to pay when due will effect the breach. No
The policy states “no action at law or suit in equity for the recovery of any claim arising thereunder shall be brought within ninety days from the time when the company shall have passed upon and approved such claim.” When a proof of loss has been filed and the loss approved
The company had sixty days in which to approve the loss. If it did not act upon and approve the loss within that time the defendant would be justified in holding that the company had abandoned or waived this feature of its contract. The insured’s right to sue depends on the affirmative action of the company, and as suit may not be instituted after one year from the animal’s death, it is evident that this clause after deducting the five months mentioned in which suit cannot be brought allows the insured but seven months to institute suit.' It brings his right to sue within a' narrow limit of time. Without discussing the legality of this clause the court should adopt a construction that will without doing violence to the policy prevent a forfeiture, and secure to the insured at least a small return on his loss. When the company failed to approve the loss the insurer was at liberty to sue immediately for the loss, and fair dealing
The decree of the court refusing judgment for want of a sufficient affidavit of defense is affirmed.