222 Pa. 462 | Pa. | 1909
Opinion by
The plaintiff, while a passenger in a railroad car, received a wound in his right eye through external, violent and accidental means, independently of all other causes, which resulted
The policy contained this further provision — “affirmative proof of death by external, violent and accidental means, or of loss of limb or sight, or of duration of disability, must also be furnished to the company within two months from the time of death, or loss of limb, or sight, or of the termination of disability.” Nothing is specified as to the extent or character or mode of the proof required, except that it be affirmative. In its letter to the plaintiff acknowledging the receipt of the notice sent as to the accident, the company in positive and express terms refused to recognize any liability to the plaintiff, on the ground that the notice given, did not follow immediately upon the accident. This letter reads in part as follows: “We hardly feel, Doctor, that we can for a moment consider the claim, the notice of which comes to us at so late a date. If you
The sworn statement of Dr. Walters was affirmative proof of what was claimed by the plaintiff as to the cause of the accident and the extent of his injury. It was not, as we have seen, submitted as proof of loss; but it nevertheless answered the whole purpose of 'the policy requirements, in sustaining and corroborating the plaintiff’s statement in its material features. It is unimportant what the purpose was in forwarding it, if it met the requirements of the policy. The learned trial judge so held and submitted it to the jury to determine whether it had been forwarded without unreasonable delay.
But apart from this, even though the proofs were defective and were not sent within'the required time, the defendant was not in position to defend on any such ground. It disclaimed liability on the policy immediately upon receipt of notice of the accident, on the ground that the notice came too late. It asserted and reasserted its determination to refuse payment because of the plaintiff’s default in this respect, and only sent the blanks for proofs to the plaintiff because of his importunity, and to the end that it might determine whether there were equitable considerations which should move them, not to pay a legal obligation, but rather to extend charitable relief. It is settled law that an unqualified refusal to pay a loss, based on facts within the company’s knowledge, and made under such circumstances as to justify the insured in believing that the rendition of proofs would be a vain act, and that they would not be examined, is an equivalent of an express agreement of waiver. The rule is thus stated in May on Insurance, sec. 469: “A distinct denial of liability and refusal to pay, on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss. It is equivalent to a declaration that they will not pay though the proof be
A review of the whole case has satisfied us that appellant is without cause of complaint. It was fairly submitted on the facts, and the instructions as to the law were correct. Appellant was given a larger latitude in its defense than it was entitled to claim.
Judgment affirmed.