175 Pa. 350 | Pa. | 1896
Opinion by
In an action by the same plaintiff, Freedman, against the Fire-Association of Philadelphia, reported in 168 Pa. 249, it was held that a policy of fire insurance procured upon the representation that the property insured was owned by and in charge of a successful business man, when in fact the title was in a married woman who exercised no supervision over it, was invalid; and in that case it was held that there was no evidence of a. waiver by the defendant of the right of forfeiture. This action is founded upon another policy which covered the same prop
This instruction raises the only question now to be considered. The testimony of the plaintiff’s witness on the subject is this: The fire occurred March 15,1892 at Laceyville, Wyoming Co.; on April 12, Mr. Little, the special agent of the insurance company, called at the plaintiff’s store in Athens, Bradford county, and asked Bernard Freedman, the plaintiff’s husband, if she was at home, and was informed that she was. He then asked to see the books and papers relating to the business which had been conducted at the Laceyville store, where the fire occurred.
It is by no means clear from the. evidence that at this time Mr. Little knew what representations had been made at the time the msurance was procured, but assuming that the defendant had knowledge of them, was there any ground of estoppel?
In Freedman v. Fire Ass’n, 168 Pa. 249, it was said that the call for the magistrate’s certificate would be evidence under our cases of a waiver of other defects in the proof of loss, and that it might raise the question of the right to defend for the breach of other conditions or for the failure of the plaintiff to take steps which were merely formal prerequisites to a suit, and
Waiver of the proofs of loss may be inferred from acts of the insurer which show a recognition of liability or a denial of liability exclusively on other grounds: Penn Ins. Co. v. Dougherty, 102 Pa. 568; Lebanon Ins. Co. v. Erb, 112 Pa. 149; Snowden v. Kittanning Ins. Co., 122 Pa. 502; and the failure of the insurer to give notice of objections to the proofs of loss furnished within the stipulated time and intended as a compliance with the requirements of the policy is evidence of a waiver of defects: Gould v. Dwelling House Ins. Co., supra. The reason for the rule, and the distinction between an attempted compliance with the requirements of the policy and a failure without valid excuse, are fully pointed out in the case last cited, and it is said in the opinion: “ In establishing this rule in regard to the conduct of insurance companies as to objections to proofs of loss it is not intended to encroach at all on the doctrine of waiver by estoppel as laid down in the well considered and authoritative cases of Trask v. Ins. Co., 29 Pa. 198, Beatty v. Ins. Co., 66 Pa. 9, and others of the same kind.”
In most of the cases in which it has been held that an insurance company by specifying one ground of defense was estopped from asserting other grounds at the trial, the failure of the insured has been in not complying with a condition precedent to the right of action, and they come within the rule stated in Gould v. Ins. Co., supra, or were decided upon the ground of express wavier. In McCormick v. Royal Ins. Co., supra, by mutual understanding of the parties, the only matter in controversy between them was the ownership of the property destroyed; all other grounds of defense had been relinquished. Suit having been brought with this understanding to determine the question of ownership and nothing else, it was held that the company should not be permitted to defend on the violation of a clause in the policy regulating the manner in which the lumber should be stored.
In this case the agent of the insurance company specified no
Waiver is essentially a matter of intention, and to establish it theré must be some declaration or act from which the insured might reasonably infer that the insurer did not mean to insist upon a right which because of a change of position induced thereby it would be inequitable to enforce: Beatty v. Ins. Co., 66 Pa. 9; Ins. Co. v. Brown, 128 Pa. 386. In the latter case it was distinctly held that the making of an offer of settlement, or the failure to state in the affidavit of defense all the grounds of defense relied upon, did not justify the inference of a wai ver.
The judgment is reversed with a venire facias de novo.