51 Pa. Super. 447 | Pa. Super. Ct. | 1912
Opinion by
The plaintiff brought this action upon a policy of insurance issued by the defendant company upon a stock of merchandise, alleging in his statement that the property had been damaged by fire to the amount of $7,116.10; that the total insurance aggregated $6,500, and that he was entitled to recover of the defendant company the full amount of its policy, viz.: $1,500. The insurance company filed an affidavit of defense admitting the validity of the policy and that upon the occurrence of the fire it became liable for the proportion of the loss sustained which this policy bore to the total insurance ($6,500), if the plaintiff had taken the steps to enforce that liability which the covenants of the policy required. The affidavit denied, however, that the total loss sustained by plaintiff was $7,116.10 and averred that the total loss at a fair and reasonable market cash valuation of the property w.as $3,451.73 and that the defendant’s proportion of that loss was three-thirteenths, to wit, $796.55. The affidavit further averred that the plaintiff was not entitled to recover any amount in this action for the following reasons. The policy contained a provision that in case of loss or damage the same should be “ascertained or estimated according to such actual market cash value .... said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers, as hereinafter provided. ... In the event of a disagreement as to the amount of loss the same shall, as above provided, be ascertained by two competent disinterested appraisers, the insured and this company each
The sole question in the case is whether the plaintiff was required, before bringing his action, to submit the matter in dispute to the determination of appraisers in the manner specified in the policy. The question is not a new one and it has been authoritatively settled adversely to the contention of the appellant. The policies of insurance which were involved in Commercial Union Assurance Co. v. Hocking, 115 Pa. 407, and Howard Insurance Co. v. Hocking, 115 Pa. 415, contained covenants substantially, if not precisely similar, to those of the present policy above quoted, and the plaintiff had brought his actions on the policies without having first caused the
The appellant argues that the authority of the decisions above cited has been shaken by the decision of the Supreme Court in Fritz v. British-American Assurance Co., 208 Pa. 268, but we cannot hold that contention to be well founded. In the case cited the parties had actually agreed upon appraisers, who had entered upon the discharge of their duties and having consumed much time had failed to agree. This had delayed the plaintiff in bringing his action and, as under another covenant of the policy it was stipulated that there could be no recovery unless an action was brought within one year after the fire, the insurance company asserted that the plaintiff had forfeited his right to recover. The Supreme Court held that the right to maintain the action remained in abeyance during the proceedings before the arbitrators, and that, in these circumstances, the plaintiff was not required to bring his action until the arbitrators had filed their award, or the arbitration had been abandoned. In that case the parties had acted upon the covenant, and the question of their right to revoke it was not involved.
The judgment is affirmed.