| Pa. | Jun 22, 1881
delivered the opinion of the court,
By a policy dated on the 31st of July 1877, the defendant below, plaintiff in error, insured the dwelling-house of Thomas Davis, the plaintiff below, in the sum of $900, and his furniture and clothes, in the south end of the same, in the further sum of $100. On the 7th day of J uly 1878, there was a total loss of this property by fire. At the instance of the assured, as the jury have found, notice of the loss was immediately forwarded to the home office, by the resident agent of the company, through whom the insurance, had been effected. So far as the house was concerned, the loss being total, as was held in the case of the Lycoming Mutual Insurance Co. v. Schollenberger, 8 Wr. 259,
The policy required that proofs of loss should be made and forwarded to the company as soon as possible after the happening of the fire by which the loss occurred. The fact was that the proofs thus required were not furnished until nearly three months after the ñre. The defendant contends that this was too late, and that the court should so have instraeted the jury. We agree, that, without evidence explanatory of the delay, this contention would have irresistible force. We think, however, that there was such evidence and that of a character that warranted the submission ; that it did account for the delay, as the jury have found. As we have before said, the policy requires the proofs of losses to be furnished as soon as possible after the fire, but this language must bo constraed to mean that the assured is, for this purpose, to have a reasonable time ; but what is such reasonable time must depend largely upon circumstances, and, as a rule, a question of this kind must, for its solution, be referred to a jury.
From the conduct of the company, the jury, in this case, might well have inferred an entire waiver of these proofs, had that question been submitted to them, but as it was not submitted to them we can take no notice of a point of this kind, though in effect, precisely the same principles were applicable to the question raised in the tidal of the case.
In the Lycoming County Mutual Insurance Co. v. Schollenberger, supra, the policy required proofs of loss to be made within thirty days from the time of the fire, but it was held that an agent authorized to settle the loss might waive that requirement and bind the company by the acceptance of such proofs after that time. So in the Inland Insurance Co. v. Stauffer, 9 Ca. 397, it was announced as sound law that such waiver may be inferred from acts evincing a recognition of liability, or even from a refusal to pay for some other reason than a want of preliminary notice or statement of loss.
But why may not the plaintiff’s delay be accounted for on similar principles? Was his delay reasonable under all the cir
In fact, here was an unqualified acceptance of the proofs of loss, and so the court might have instructed the jury, instead of leaving that body to puzzle over the question of reasonable time. The mistake, however, was one favorable to the defendant, and of which it has no right to complain. But again, the 9th section of the policy, the same which requires the statement of loss, and directs how it shall be made out, reads thus: “ The assured shall, if required, submit to an examination or examinations under oath, by any person appointed by the company, and subscribe to such examinations when reduced to writing; and shall also produce their books of account and other vouchers, and exhibit the same at the office of the company,” &c.
"Was this intended as an equivalent of the statement of loss directed by the preceding part of this section ? It is probable that the officers of the corporation so understood it, otherwise they would hardly have furnished Davis blanks for his statement, at a date so late as the 4th of November, or afterwards have accepted it without hesitation or demur. However this may be, this much must be conceded, that an ordinary layman, uninformed to the contrary, might well suppose that, having given his statement under oath, to an agent sent from the home office for that purpose, every question having been fully and unhesitatingly answered, put down in writing, and that writing subscribed and delivered, he had done and performed all that could possibly be required of him. Now, it may be that this man was mistaken ; that it was his duty to make another paper of like import, swear to it, and place it in the hands of this same agent. There is, however, this one thing of which we
But, immediately following this examination, a prosecution was instituted against Davis, on information of the local agent of the company, charging him with having himself burned the insured premises. The result of the prosecution was a verdict of not guilty. After all this consumption of time, produced by tbe action of tbe officers of the underwriters, the plaintiff came to the conclusion that he had better forward regular proofs of loss.. Accordingly they were forwarded; were returned, not as rejected, hut for correction, were corrected, re-forwarded, and, as we have before stated, accepted. After all this, we cannot understand how the company can be heard to complain of the delay as unreasonable.
The foregoing disposes of all the material assignments of efror except the sixth; but this cannot be considered.
The complaint is that the court admitted the preliminary proofs and permitted them to be read to tlie jury “ without restriction in disregard to the specific objections made by the defendant below.” This assignment is not according to the rule, for tbe specific objections here mentioned are not set out, lienee it should be passed without notice. Passing this, however, whilst the paper was offered in evidence, which was altogether proper, I cannot find where it was read to the jury. I suppose it was not so read, for I find no record -of any exception to such reading, hut only the general one that it was mailed too late to meet the requirements of the policy — an exception already fully disposed of.
Judgment affirmed.