24 Pa. Super. 154 | Pa. Super. Ct. | 1904
Lead Opinion
Opinion by
This action was brought to recover the amount of a fire loss sustained' by plaintiff under a policy of insurance issued March 2,1898. A clause in the policy contained the following provisions: “ The insured, as often as required, shall exhibit to any person designated by this company all that remains of any property herein described and submit to examinations under oath by any person named by this company and subscribe the same; and, as often as required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.”
The. plaintiff gave notice of the fire and furnished proofs 'of loss, and on June 4, 1898, his attorney received written notice from the adjuster of the company that the papers received by it purporting to be proofs, of loss were not satisfactory to the company, and would not be accepted by it as complying with the conditions of the contract. No particulars were given, however, with respect to which the proofs of loss were objectionable. The letter also contained the following: “Wé demand in accordance with said policy (see lines 88 to 85 both inclusive), that you shall produce for .our examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.
“ I am informed that Mr. Karmany has already made this demand upon you, but thinking that possibly you might construe this as only applying to his company, I write you in reference to the same myself.”
The' Mr. Karmany referred to was the representative of another insurance . company, which had issued a policy on the same property. The plaintiff placed the subject of proofs of loss and the business .connected therewith in the hands of his attorney, but did not produce for examination his books of account, bills, invoices., etc. At the trial the learned judge was of the opinion that the plaintiff’s failure so to do defeated his right of action, and accordingly directed a .verdict for the defendant.
It is contended, however, by the defendant that irrespective of the failure of the plaintiff to produce his bills, accounts, etc., he is not entitled to recover because the parties submitted their differences to arbitration, and that as the arbitrators had not agreed, the suit was prematurely brought. The court below ruled against the defendant on this proposition, and in so doing was in accord with the adjudication of the Supreme Court on the subject. The revocability of a general arbitration clause is established by many cases: Gray v. Wilson, 4 Watts, 39; Snodgrass v. Gavit, 28 Pa. 221; Lauman v. Young, 31 Pa. 306 ; Hostetter v. City of Pittsburg, 107 Pa. 419.
In Mentz v. Armenia Fire Insurance Company, 79 Pa. 478, it was held that a general agreement of reference is revocable. To the same effect is Commercial Union Assurance Co. v. Hocking, 116 Pa. 407. In the case last named, the provision of the policy was that “ in case differences shall arise respecting any loss or damage, after proof thereof, the matter shall,
In Yost v. Dwelling House Insurance Co., 179 Pa. 381, the court held that the arbitration clause in the policy of insurance in question in that case “ was a revocable agreement, and the insurance company is in no position to complain here or elsewhere of the revocation of it.” See also Penn Plate Glass Co. v. Spring Garden Insurance Co., 189 Pa. 255.
The authorities cited by the learned counsel for the defendant are cases where the submission to arbitration was part of an agreement containing other terms to be performed by the parties, among which are Williams v. Tracey, 95 Pa. 308, White’s Appeal, 108 Pa. 473, McKenna v. Lyle, 155 Pa. 599, and Zehner v. Lehigh Coal & Nav. Co., 187 Pa. 487.
In Paist v. Caldwell, 75 Pa. 166, the law as to-the revocability of agreements of reference is thus stated: “ Where the agreement partakes of the nature of a contract whereby important rights are gained and lost reciprocally, and the submission is the moving consideration of these acts, a different rule prevails. Such agreements are compromises, and should be faithfully adhered to unless there has been fraud or corruption or gross misbehavior by the referees.”
The agreement of reference in the policy on which this action was brought is a mere naked authority, and did not bind the company to the payment of the amount of loss which the referees might find the insured had sustained. The policy expressly provides that “ this company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act or proceeding on its part relating
The record of the trial shows moreover that the plaintiff offered to prove that the arbitrator chosen by the defendant had declined to proceed further with the reference, and that the arbitration had been abandoned, which offer was rejected by the court.
Reliance is placed by the defendant on the ease of Seibel v. Lebanon Mut. Insurance Co., 197 Pa. 106, which was an action on a policy issued on the same' property. The provision in the policy on the subject of the production of books, etc., was similar .to that in the plaintiff’s case. In that case, however, the attention of the insured was not only called to the particular provision of the policy, but a formal and specific demand was made upon him that the information desired be forwarded to the office of the company at Lebanon, Pa., by mail or otherwise, and emphasis is placed in the opinion of Chief Justice McCollum on the fact that compliance on the part of the insured “ was 'insisted upon from the first and demand for its performance was renewed and continued.” There was in that case not only a request for performance but a designation of the place at which performance was to be made, and the insured was plainly bound to comply with the request of the company. In this respect the case is distinguishable from that which we are called upon to determine.
We hold, therefore, that the plaintiff’s right of action is not defeated by his failure to produce his books, papers, accounts, vouchers, etc., for examination by the defendant, until a place has been designated at which they are to be produced.
The judgment is reversed and a venire facias de novo is awarded.
Dissenting Opinion
dissenting:
I cannot agree with the opinion of the court reversing the judgment in this case. The learned court below decided against the plaintiff, relying on Seibel v. Lebanon Mutual Insurance Co., 197 Pa. 106, which was an action on a policy issued on the same property. It is claimed that the facts distinguished
In the present case, the plaintiff alleging that his store, goods, etc., were destroyed by fire, forwarded proofs of loss to the insurance company, defendant. On June' 4, 1898, his attorney received written notice from the adjuster of the company that the papers received by it purporting to be proofs of loss were not satisfactory to the company and would not be accepted by it as complying with the conditions of the contract. The letter also contained the following : “We demand in accordance with said policy (see lines 83 to 85, both inclusive), that you shall produce for our examination all books of account, bills, invoices, and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made.”
No reply was made to this notice and demand, and soon thereafter this suit was brought.
The excuse set up by the plaintiff for not complying with his request is twofold: 1. His books, etc., referred to in the notice were destroyed by fire, and 2. That he did not procure any copies nor endeavor to do so, because the company in said letter failed to name a place for the production of the same. It seems to me clear that it was the duty of the plaintiff to reply to the letter of June 4,1898, informing the company of the loss of his books of account, bills, invoices, etc., and offering to procure such copies as he could get, and asking the company to designate a time and place for their production. This provision in the contract of insurance is a reasonable one and it is intended to protect the company from fraudulent claims, and I do not think that it can be avoided by such a sharp technicality as the plaintiff resorted to in this case.
If the company had named a place and time for the production of the books of account, bills, invoices, etc., in the letter of June 4, 1898, or at any time thereafter prior to the commencement of the suit, it would probably have amounted to nothing because the plaintiff admitted at the trial that he made no effort to procure certified copies and in fact did not procure