127 A. 620 | Pa. | 1924
Argued December 3, 1924. Plaintiff suffered a loss by fire to his stock of merchandise. It was covered by a policy of insurance in the defendant company, which was in the standard form prescribed by the Act of June 8, 1915, P. L. 919. As he was required to do by the contract, plaintiff executed and delivered to defendant proofs of loss, wherein it was set forth that the damage was equal to the actual cash value of the property insured. In accordance with a provision of the policy, the insured, in writing, demanded an appraisal of his loss, and when the company did not acquiesce in the demand, he brought this suit. At the trial, after offering the policy in evidence, together with his demand for the appraisal, and the proofs of loss (the demand for appraisal and the proofs of loss being met with objection from defendant), plaintiff rested his case and presented a point for binding instructions, which was affirmed by the trial judge. The jury rendered a verdict for plaintiff for the full amount of his claim, upon which judgment was entered; the company has appealed.
The defendant assigns as its reason for not complying with plaintiff's demand for an appraisal that the proofs of loss filed with it so grossly exaggerated the value of the property and the loss as to amount to a fraud sufficient to vitiate the policy, and the suggestion is made that if it had assented to an appraisal, it would have *228 waived this defense. We are not required, owing to our conclusions on other questions, to determine this one.
A very clear view of the matters submitted for our determination is afforded by the statement of the questions involved by appellant's counsel. We will quote them in the language which they have employed: "(1) Do the provisions of the Act of June 8, 1915, P. L. 919, make it obligatory upon an insurance company to appraise a loss, if the assured demands an appraisement? (2) Has a proof of loss, under any circumstances, any evidential value, other than to establish compliance with the terms of the insurance contract? (3) Was the liability of the defendant established, and, if so, was the amount thereof, proven by competent evidence?" Their contention is that the answers to these questions should be in the negative.
Plaintiff's counsel sum up their position substantially thus: (1) Plaintiff having submitted his sworn proof of loss in compliance with the terms of his contract, and having selected an appraiser and made written demand upon the company to select one, and the latter having declined to do so, or to have the amount of loss or damage determined by the method provided by the contract, the company is estopped from setting up that the loss was less or different from that shown by the sworn proof of loss, which proof is proper and controlling evidence of the extent of the loss and binding upon defendant, unless, on other grounds, it had a defense to the whole action. (2) The only defense stated in the affidavit of defense was to the whole action, that the proof of loss was wilfully, knowingly and deliberately false. The burden of establishing that defense was on defendant and was not met at the trial. (3) As the third section of the Act of June 8, 1915, P. L. 919, 925 (which act established a standard form of policy contract), provides that "Any person, corporation, or company that shall, either as principal or agent, wilfully issue or cause to be issued any policy or contract of fire insurance on property situated *229 within this Commonwealth, contrary to the provisions of this act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be sentenced to pay a fine of not exceeding five hundred dollars"; the contract as made by the parties has the force of a statute, the terms of the contract are the law on the subject, and the statute has provided how damages shall be ascertained and determined.
The whole controversy centers in this provision of the standard policy prescribed by the Act of 1915, P. 924: "In case the insured and this company shall fail to agree as to the amount of loss or damage, each shall, on the written demand of either, select a competent and disinterested appraiser. The appraisers shall first select a competent and disinterested umpire, and, failing for fifteen days to agree upon such umpire, then, on request of the insured or this company, such umpire shall be selected by a judge of a court of record in the county in which the property insured is located. The appraisers shall then appraise the loss and damage, stating separately sound value and loss or damage to each item, and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two, when filed with this company, shall determine the amount of sound value and loss or damage. Each appraiser shall be paid by the party selecting him, and the expenses of appraisal and umpire shall be paid by the parties equally."
The Act of 1915 is entitled "An Act to provide a standardform of policy contract to be issued by fire insurance companies transacting business in Pennsylvania; designating the provisions thereof; exempting certain policies; and prescribing penalties for any violations"; and section 2 of the act provides, "Said standard form shall be plainly printed, and no portion thereof shall be in type smaller than the type used in printing the form on file in the office of the insurance commissioner and shall be as follows: . . . . . ." *230
Broadly stated, it is the contention of appellee's attorneys that the provision as to an appraisal is binding upon both parties to the contract upon the demand of either, that this provision cannot be waived except in the manner provided by the policy and that there has been no waiver; that the failure of the company to comply with the mandate of the law in this requirement of the policy estops it from contesting the value fixed upon the damaged property by the plaintiff, and the proofs of loss, without further evidence as to value, are sufficient, when coupled with the offer of the policy and the proof of the fire, to warrant recovery. This view was very ably presented to us, but we think it not a tenable one.
In our view the basic proposition on which the argument of appellee's counsel proceeds is unsound. By the Act of 1915, the legislature was not laying down rules of law for the construction of insurance contracts, the lawmakers were only prescribing the form of policies which were to be thereafter issued. This is manifest from the title of the act and from its second section heretofore quoted and this is the construction which has been placed on such enactments by the courts in all jurisdictions brought to our attention, with the possible exception of two, Wisconsin (Temple v. Niagara Fire Ins. Co.,
Neither of the cases largely relied on by the court below and by appellant's counsel in support of the position that under the appraisal clause of the policy the company was required to appoint an appraiser and failing to *232
do so was estopped from denying the amount of the loss (Temple v. Niagara Fire Ins. Co.,
The provisions in contracts of insurance as to appraisal have been construed by us as not compulsory and binding upon the parties to the contract on demand of either of them; until acted upon, such an agreement *233
is revocable (Mentz v. Armenia Ins. Co.,
When the legislature, therefore, provided in the form of policy that it should contain a clause providing for appraisal, it did so with the knowledge that the agreement to appraise, if not acted upon, was revocable, and therefore it cannot now be maintained that the requirement to do so was a positive mandate of the law, no change in such rule having been made in the act. Statutes are not presumed to make any change in the rules and principles of the common law or prior existing law beyond what is expressly declared in their provisions: Pettit v. Fretz's Executor,
No elaborate discussion of the proposition that the proofs of loss have no evidential value in fixing the loss or damage is required. We have uniformly held that they are not competent proof on this subject: Cole v. Manchester Fire Assur. Co.,
The trial judge was in error in giving binding instructions to the jury to find for the plaintiff; in admitting paragraphs from the plaintiff's statement of claim and the answers thereto in the affidavit of defense relating to the failure of the defendant to agree, on demand, to an appraisal; in admitting the proofs of loss as evidence of the value of and damages to the goods covered by the policy; and in admitting evidence as to the demand of the plaintiff for an appraisal; therefore, the first, second, third, fourth and fifth assignments of error are sustained and the judgment is reversed with a new venire.