255 Pa. 297 | Pa. | 1917
Opinion by
November 13, 1913, the plaintiff, a country storekeeper, procured from the defendant company a policy of fire insurance on his stock of merchandise. On the night of December 2,1913, the building occupied by the plaintiff, and its contents, were destroyed by fire; he was upon the premises at the time, but professed entire
The numerous assignments of error raise three principal questions, which appellant correctly summarizes thus: (1) “Did the court err in admittance of evidence?”
The plaintiff, who was the only witness to the value of the property destroyed, produced what he testified were copies of bills which had been rendered to him by various persons from whom he had purchased goods prior to the fire, and claimed that all the articles mentioned therein were in his store at the time of its destruction, except a comparatively small quantity of merchandise previously removed or sold by him. He stated the original bills had been lost, but that Mr. Zieg, the insurance adjuster, had secured duplicates for him. While admitting he could neither read nor write English, the plaintiff said he recognized the various bills by their size and color; whereupon he was permitted to refresh his recollection therefrom, as to the dates, amounts and values of certain of his purchases; moreover, the duplicate bills themselves were admitted in evidence: all this was harmful error. The testimony shows that, in most part, the plaintiff was incapable of stating the amounts of his purchases or the values of the goods in thé store on the night of the fire; without the aid of this incompetent documentary evidence. Under these circumstances, wherever he was unable to enumerate the articles on hand, with their respective values, if other competent proof was not available, he should have taken the testimony of those from whom he purchased the goods; in this way he could have proved his loss with reasonable precision, which is all that is required in such cases.
As to the alleged adjustment by Mr. Hepler, there is nothing in the testimony to prove that this man had authority to agree upon á figure the defendant would pay; nor, in fact, is there evidence sufficient to show that he undertook so to do. True, Mr. Zieg, although frequently warned that he should not, insisted upon giving
Firstly, assuming that Mr. Hepler did just what Mr. Zieg stated, i. e., “agreed upon the measure of damages,” since the “measure” is merely the rule by which damages are to be estimated, Mr. Zieg’s statement might well be taken to mean simply that Mr. Hepler and he had agreed between them that, in estimating the plaintiff’s damages, all the items set forth in his written claim, or proofs of loss, were to be taken into account, and that they were the only ones to be considered. Next, the words on the statement attached to'the proofs of loss (quoted in the previous paragraph) cannot, with any degree of certainty, be said to have conveyed any definite information to the defendant on the subject of the al'leged adjustment, for they failed to state the name of the adjuster therein referred to, or that he was acting, or purporting to act, on behalf of the insurance company. As a matter of fact, considering the nature and
It appears that Mr. Zieg sought out and arranged the meeting with Mr. Hepler, because the latter was the agent of the defendant company who “had been instrumental in placing the insurance and had countersigned the policy”; and it is more than likely that all which really occurred at their meeting, on December 19, 1913, was that Mr. Hepler assisted Mr. Zieg in preparing the information necessary to enable the plaintiff to submit his formal proofs of loss; but/ however this may be, as already stated, it is clear the evidence was insufficient to sustain a finding that a binding adjustment had taken place, or to estop the defendant company from asserting the contrary. In this connection, the trial judge very correctly charged that the delay of the insurance company in sending to the plaintiff its declination to pay was a waiver of any insufficiency in the proofs of loss; but he could not properly have ruled that the amount of loss claimed therein was conclusive on the defendant, and, as before said, we see no warrant in the evidence for permitting the jury so to find.
Under the circumstances of this case, in view of the unexplained origin of the fire, which occurred soon after the insurance was effected, and the evidence in the hands of the defendant indicating the removal of considerable quantities of goods just prior to the alleged loss, it can be seen that the insurance company had some apparent justification for delaying its decision, while making investigations; particularly is this so when we look at the letter sent, December 20,1913, by Mr. Hepler to Mr. Kramer (alleged by the defendant to be its adjuster), wherein he enclosed a copy of the summary of the plain
On the question of the construction of the policy, we agree with the view of the court below. In reference thereto, President Judge King states: “The insurance policy, which is the foundation of this action, contained what is known as the ‘Iron Safe Clause,’ which is as follows :......‘1st. The assured will take a complete itemized inventory of stock on hand at least once in each calendar year, and, unless such inventory had been taken within twelve calendar months prior to the date of this policy, one shall be taken in detail within 30 days of issuance of this policy......2d. The assured will keep a set of books, which shall clearly and plainly present a complete record of business transacted......from the date of inventory, as provided for in first section of this clause, and during the continuance of this policy, ,3d. The assured will keep such books and inventory...... securely locked in a fire-proof safe at night......In the event of failure to produce such set of books and inventories for the inspection of this company, this policy shall become null and void and such failure shall constitute a perpetual bar to any recovery thereon.’ Because the plaintiff did not make and have such an inventory
We have endeavored to state our views on the principies governing the present case, but do not deem it necessary specifically to pass upon each of the twenty-four assignments of error; it is sufficient to say that all those which show rulings in conflict with the views here expressed are sustained.
The judgment is reversed with a venire facias do novo.