40 Pa. Super. 294 | Pa. Super. Ct. | 1909
Opinion by
There were five cases in favor of the same plaintiff tried together in the court below; one against the Globe Underwriters was disposed of by the court giving binding instructions for the defendant; another was against the Guardian Fire Insurance Company, but no appeal was taken, the company having be
The policies in the Lebanon Mutual and the Concordia Fire Insurance Companies were for $1,000 each on the stock of merchandise contained in the plaintiff’s store. The policy of the Ohio German Fire Insurance Company, the other appellant, covered its proportionate share of the insurance upon the building, merchandise and furniture, but as the loss was claimed to be total, each company, if liable at all, was liable for the full amount of its policy.
Fire occurred on February 5, 1908, by which the plaintiff’s property was destroyed. The plaintiff failed to serve his proofs of loss within the stipulated time of sixty days after the fire, but claimed that there was a waiver of the strict terms of the policy by the defendants. The cases were all tried together upon three defenses: (a) That proofs of loss were not filed within sixty days; (b) That the plaintiff was guilty of misrepresenting and false swearing concerning the insurance and the subject thereof, having made contradictory statements in his statement of claim and his proofs of loss; (c) That the property had been damaged by an explosion which preceded the fire.
The court instructed the jury that the proofs had not been filed in time and that their verdict therefore should be for the defendants, unless they found that there had been a waiver on the part of the defendants. The questions as to false statements and the explosion were also left to the jury who found verdicts for the plaintiff for the full amount of the policies.
The first assignment of error is that the court erred in refusing the defendant’s first point which point and answer are as follows: “1. Under all the evidence your verdict must be for the defendant. Answer: These propositions are refused in every case except the Globe Underwriters Agency and therein we affirm the proposition and direct that you render a verdict for the defendant.”
“The third assignment: The court erred in using the following language in the charge: 'We think, however, that it is a plain question of fact 'for the jury that under those circumstances where there had been a total loss of the property as plaintiff alleges, and as is not denied, where there was an immediate notice, where the adjusters of the company appeared upon the ground and made a personal investigation and where by agreement the adjuster, who represented the company, and the plaintiff and his adjuster met and made an examination of the books and papers, it is for the jury to determine whether there was a waiver on the part of the company.' ''
We will briefly consider the second and third assignments first.
In affirming the fourth point the learned court positively instructed the jury that the defendants could not set up as a defense the failure of the plaintiff to file formal proofs of loss within sixty days after the date of the fire. But in the general charge, as raised in the third assignment, the learned court instructed the jury that it is a plain question of fact for the jury under the circumstances where there had been a total loss of the property as plaintiff alleges and is not denied, etc., .... it is for the jury to determine whether there was a waiver on the part of the company. Now it is not in the power of mortal man to determine which instruction the jury followed. The defendants have a right to contend that by the affirmance of plaintiff’s fourth point (second assignment) the court led the jury to disallow the defendant’s defense on account of the failure of the plaintiff to file formal proofs of loss within sixty days from the date of the fire. But there is further error in
But the more important question in this case is whether there was sufficient evidence to warrant the court in submitting the question of a waiver of the filing of proofs within sixty days to the jury at all. We are clearly of the opinion that there was nothing in the case to estop the defendants from raising this question. They set it up in their affidavit of defense and they insisted upon it at the trial. We have examined with care the evidence upon which the plaintiff contends that the adjusters of the defendants met and investigated the loss and took such action that the plaintiff was relieved from filing the proofs of loss within sixty days, but- we do not think the evidence was sufficient to carry that question to the jury. After the fire, the plaintiff employed one Hall, to try to get a settlement with the insurance companies and plaintiff, Hall and some adjusters met at Pittsburg and made an investigation of the loss, to some extent, and one of the adjusters, at least, offered to pay plaintiff seventy-five per cent of his alleged loss. But this proposition was flatly refused by the plaintiff and in all of the evidence we fail to find proof of a waiver of a strict compliance with the terms of the policies or sufficient evidence of such waiver to carry that question to the jury. It has been héld over and over again that a rejected offer to compromise is not sufficient evidence of a waiver of the proofs of loss called for in the policy.
In Beatty v. Lycoming Mutual Ins. Co., 66 Pa. 9, Sharswood, J., said: “Now to constitute a waiver there should be shown some official act or declaration of the company during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters
In Dunn v. Farmers Fire Ins. Co., 34 Pa. Superior Ct. 245, the facts are much like the present case. There the plaintiff and the adjuster of the insurance company met and endeavored to settle but failed to do so and there was a suit with verdict and judgment in favor of the plaintiff. In that case, like the present one, the learned com! instructed the jury that unless they found that the defendant had waived a strict compliance with the requirement of proof of loss, the plaintiff could not recover, but the court submitted that question to the jury and on appeal, we held that the evidence was insufficient and reversed the judgment. We could not affirm the present judgments without reversing that judgment and going in conflict with the decisions of the Supreme Court upon which it was based.
In the present case, where the plaintiff employed an agent to negotiate for a settlement with the companies and that agent induced the adjusters of the companies to meet with him and the plaintiff, and an effort was made to compromise and settle, and the plaintiff rejected the offer made by the adjusters, it is difficult for us to see how all that took place at that meeting, as disclosed by the evidence, or elsewhere, furnished any ground on which the plaintiff could stand and successfully maintain his suits without furnishing the proofs of loss within sixty days, as stipulated in his policies. We think the court ought to have given a binding instruction in favor of the defendants. The'first assignment of error is sustained.
Judgment reversed.