44 Pa. Super. 225 | Pa. Super. Ct. | 1910
Opinion by
The insurance company, garnishee, had issued its policy insuring the household goods and personal property of the defendant. During the life of the policy a fire occurred resulting in the total loss of the property insured. The. plaintiff then, who was a judgment creditor of the defendant, issued an attachment execution in which the insurance company was made garnishee. The proceeding resulted in a trial and verdict in favor of the plaintiff upon which judgment was entered and the garnishee appeals.
Whether we view the question from the standpoint of reason or authority we must conclude that this position is untenable. An attachment execution, as the form and language of the writ clearly indicate, is of a dual nature. As against the defendant it is of course an execution process, and is necessarily preceded by a judgment which has liquidated the amount of the indebtedness. But it also contains a clause of summons for the garnishee, and as to the latter it is the beginning of a new proceeding. By it this garnishee was brought into a court having complete jurisdiction, to try and determine what, if anything, it owed to the defendant upon its policy of insurance. When thus brought into court it possessed every right of defense that it would have had to a common-law action brought by the assured directly on the policy. True, the proceeding was not instituted by the assured in person but by one who had become clothed, by force and effect of the statute, with every right of action which the assured himself could assert. The garnishee could defend on legal grounds, on matters of fact, or on both. The issues it presented were disposed of before a court and jury as if the action had been under the forms of the common law, and the judgment that would properly terminate such a proceeding would be a complete bar to any other suit or action directly on the policy.
Whilst it may be true that the precise question in the form it is now raised has not been passed upon by the appellate courts of this state, there is, we think, abundant authority for the principle, which when applied, must control it, In Barr v. King, 96 Pa, 485, it was held that
Complaint is further made of the action of the learned trial court in submitting to the jury to determine as a matter of fact whether or not the insurance company had waived that provision of its policy requiring formal proofs of loss to be made within sixty days from the date of the fire. It is argued that such submission was erroneous because there was no sufficient evidence to warrant it. In determining the question thus • raised it is to be remembered that the appellant puts itself in the attitude of demurring to the whole of the evidence. Every matter
It appeared from the conversation of such special agent, ■ as well as from letters written by him, that the chief difficulty in the way of a prompt settlement was the inability of the company to accept the valuations placed by the assured on the property destroyed, and a sum representing what the agent believed to be full compensation was offered and declined. At the request of the company the assured procured, as far as he was able, bills and receipts tendihg to verify his statements of the value of the property destroyed. For instance, in his letter of July 10, exhibit No. 5, the special agent, writing to the assured, says among other things, “I have gone over carefully the alleged statement of your loss by fire,
Of course, we are not unmindful that in many respects the testimony of the plaintiff and his witnesses as to these matters of fact was strenuously denied, but, as we have already said, for the purposes of determining the soundness of the appellant’s present contention we are obliged to regard all of them as having been established by the verdict of the jury. Under such a state of facts, in the light of the modern decisions of the Supreme Court, we are not able to say that the learned court fell into error in submitting to the jury the question whether or not the right to insist upon formal proofs of loss had been waived. It is true there have been many casés on this subject. Necessarily, to a very considerable extent each one of them must depend upon its own facts. But it is quite clear that, taking them all together, they have established the principle that where the assured has made an honest and a substantial effort to comply with the requirements of his policy it becomes incumbent on the company to point out the particulars in which that effort has failed. And where the company, in discharging this obligation, points to but a single defect or two, it will be held to have waived any others that may exist: Thierolf v. Insurance
We are of opinion, therefore, that the learned trial judge could not have properly declared as matter of law that there was no evidence in the case from which the jury could fairly infer that the conduct of the company was calculated to mislead the assured into the belief that if he could, by the production of bills and otherwise, satisfy its representative that the loss was as great as he claimed, no further complaint would be made as to the form or character of the statements of his loss which he had previously furnished. The assignments of error are therefore dismissed.
Judgment affirmed.