60 Pa. Super. 151 | Pa. Super. Ct. | 1915
Opinion by
The policy of insurance upon which this action was brought was issued by the defendant, through its agent, the Daniels Insurance Agency, and May 10, 1910, for an amount not exceeding $1,100, of which $600 was on a dwelling house, $200 on household furniture, etc., therein, ánd $300 on a barn, all being situated on thé plaintiff’s premises containing less than an acre. By the terms of the policy additional insurance was permitted; the company was not liable beyond the actual cash value of the property at the time the loss or damage should be ascertained, which in no event should exceed what it would then cost insured to repair or replace with material of like kind and quality; the ascertainment was to be made by the insured and the company, or, if they differed, by appraisers; and the sum for which the com.pany was liable was not payable until “sixty days-after
About six o’clock on the morning of January 12,1911, the barn was burned to the ground, and on the same day the plaintiff caused notice of the fire, but without giving any particulars, to be transmitted by telephone to the Daniels Insurance Agency. Thereupon its manager mailed to the defendant a written loss report, in which the name of the assured, the character of the risk, the location of the property, the date and number of the policy, the date of the fire, the burning of the barn, and estimate of loss to the company ($300) were set forth. As to the origin of the fire the notice stated, “We are not informed.” The manager made several efforts, by telephone and by letters mailed to the plaintiff at his post-office address, to get into communication with him, but without success. On January 25, 1911, an adjuster of the company, by its direction, went to the premises to investigate and with the expectation of adjusting the loss. He found that the barn was totally destroyed. He made inquiry for the plaintiff, but was unable to find
The defendant offered no evidence on the trial of the case, but it is seen from the foregoing statement of the facts developed in the presentation of the plaintiff’s case, that the only attempt the plaintiff made to comply with the conditions of the policy was to cause information of the fire to be telephoned to the local agency; he ■made no attempt whatever to furnish the statement which the other conditions of the policy called for. We cannot agree to the proposition that, because the building was totally destroyed and the adjuster of the company viewed the premises after the fire, the necessity of complying with these conditions precedent to the maintenance of an action was dispensed with. Perhaps it might have been if, by the preliminary notice and the adjuster’s viewing of the premises, the company had gained the substantial information which the statement would have furnished, upon the principle that the law does not require the performance of vain things. See Lycoming Mut. Ins. Co. v. Schollenberger, 44 Pa. 259; Farmers’ Mut. Fire Ins. Co. v. Moyer, 97 Pa. 441; Gartsee v. Citizens’ Ins. Co., 30 Pa. Superior Ct. 602. But there is a plain distinction between cases of the class to which these belong and the present case, which must be ob
Is there any evidence of waiver by the company of the condition requiring the statement to which we have referred to be furnished by the insured within sixty days after the fire? In Beatty v. Lycoming County Mut. Ins. Co., 66 Pa. 9, Justice Sharswood said upon the subject of waiver: “Now to constitute a waiver there should be shown some official act or declaration by the company during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters did not mean to insist upon it.” It needs no argument to show that the fact that the company sent its adjuster to the premises to investigate and, if possible, adjust the loss, considered in connection
It results from the foregoing conclusions, that the defendant was entitled to have its points for binding direction affirmed, or, failing in that, to have judgment entered in its favor upon the whole record non obstante veredicto.
The judgment is reversed and is now entered for the defendant.