42 Pa. 188 | Pa. | 1862
The opinion of the court was delivered, March 22d 1862, by
In The Commonwealth Insurance Company v. Sennett, Barr & Co., 5 Wright 100, we held it to be error to receive as evidence to go to the jury, the statement of the loss, made out by the insured under oath, pursuant to the required stipulation also to be found attached to this policy. It can never be evidence of the subject or amount of the loss sustained. Had this decision been known, the error in receiving the plaintiff’s statement as evidence generally, would undoubtedly have been avoided. The fact that it was called for, did not.make it evidence, as is sometimes the case in regard to papers. The insurers had a right to demand it, under oath, to be used by them for the same purposes as if made without oath, and were no further bound by it. The court committed an error in permitting the statement to go to the jury under the issues in the case, and for this reason the judgment must be reversed.
2. It is not necessary to determine whether the preliminary notice of the fire was in time or not, under the requirement to give it “forthwith.” The company acted upon it as received in time; made no objection, until the trial, that five days was too great a lapse of time. They had, in the mean time, sent an agent, who was also their attorney, to investigate the loss, its
Judgment reversed, and venire de novo awarded.