Snowden v. Kittanning Ins.

122 Pa. 502 | Pa. | 1888

Opinion,

Me. Justice Claek :

By the terms of this policy the Kittanning Insurance Company insured David Snowden, against loss or damage by fire or lightning, to the amount of one thousand dollars; $400 on his two-story frame building, etc., including the foundation, occupied as a dwelling; $25 on his cupboard and handloo'm therein contained, etc., for three years from August 28, 1884; the loss and damage to be proved and paid, or made good, according to certain terms and conditions specified.

It was provided-that the company should not be liable for a greater sum than two thirds of the actual cash value of' the building burned; that in case of loss or damage, it should be optional with the company to replace, rebuild, or repair within a reasonable time; that persons sustaining loss should give notice thereof in writing, and as soon thereafter as possible deliver a particular account of the loss in writing, signed with their own hands, etc., containing certain specific matters of information as to the origin, extent, and circumstances of the loss, with plans, specifications, etc.; and, until such proofs and declarations are produced, and until such plans and specifications are furnished, the proofs should not be considered complete, nor the loss due until ninety days thereafter. The policy contained other provisions as to the duty of the insured in the case of a partial loss of personal property, but these are of no consequence here. The policy further provided for the selection of appraisers to determine in writing the amount of damage by fire, the award in writing to be conclusive and binding upon the parties, as to the extent and amount of the damage sustained, but “ not to affect or waive any other. conditions of the policy.”

The fire occurred October 23, 1885; the building and its contents were all consumed; nothing remained but the foundation, which was of stone. On October 26th, Snowden, by letter addressed to the company, gave notice that his house had caught fire and on the 23d was burned, and the result was a total loss. It is contended on part of the defendants, and this is the only defence set up against the plaintiff’s recovery, that the suit was prematurely brought; that the loss was not payable “ until ninety days after complete proof and adjustment thereof,” in accordance with the terms of the policy; that the proofs were not furnished until March 8, 1886, whilst the suit was brought on May 22d, thereafter, seventy-five days only intervening, the proofs which were furnished having in the meantime been withdrawn. On part of the plaintiff, however, it is contended that the furnishing of the proofs was waived by the company; that the proofs which were furnished were, under the agreement of the parties, unnecessary and were therefore withdrawn.

It was certainly competent for the company to waive this provision of their policy: State Ins. Co. v. Todd, 83 Pa. 272; Crawford Co. M. Ins. Co. v. Cochran, 88 Pa. 230; Farmers Mutual Ins. Co. v. Moyer, 97 Pa. 441. It has always been held competent for insurers to waive performance of a formal condition introduced into a policy solely for their own benefit; such waiver need not be expressed but may be inferred, either from the acts of the insurers evidencing a recognition of their liability, or from their denial of obligation exclusively for other reasons: Buckley v. Garrett, 47 Pa. 204; Ins. Co. v. Taylor, 73 Pa. 343; State Ins. Co. v. Todd, supra.

Was there any evidence of such a waiver of the preliminary proofs .in this case? It appears that hi November, about the middle of the month, Crawford, the company’s agent, was sent out to adjust this claim. He told Snowden the house was insured for more than it was worth, and proposed that Snowden should choose one carpenter and the company another, and “ whatever these two carpenters would agree upon the company would pay.” This offer, although not agreed to at the time, was afterwards accepted by Snowden in an interview he had in Kittanning with Brown, the superintendent of the company, and Crawford, the company’s agent. The agreement was reduced to writing and signed by the parties, and King and Morrow were therein authorized “ to appraise at its actual cash value the damage claimed to have been caused by the fire to the property insured.” Snowden says the understanding and agreement was that the company would ■ “ pay whatever these two appraisers would make; ” “ they were to pay the money right away; ” “ as quick as the value was made.” The appraisers were sworn, and on February 18, 1886, returned an appraisal or award in which they state, “that after having-taken into consideration the age, condition, and location of the premises previous to the fire, and making proper deduction for the walls, materials; and portions of the buildings saved,” they appraise and determine the damage to be $300. This adjustment of the loss was completed on February 18, 1886. The suit was not brought for more than ninety days thereafter, ' and if the proofs of loss were waived the suit was not premature.

Now, if it be true that the company agreed to pay whatever these two appraisers would make, “ right away,” “ as quick as the value was made,” and this is not denied either by Brown or Crawford, then certainly there was a waiver of the preliminary proofs. If the company through their special adjusting agent agreed to pay at onee after the adjustment was made, as ■stated, what was the necessity for prehininary proofs or for plans and specifications ? In that case the adjustment of the loss was dependent wholly upon the action of the appraisers. The question of waiver was, therefore, for the jury, and the court erred in not submitting tbat fact for their consideration. The principle governing this case is, therefore, readily distinguished from that stated in German American Insurance Company v. Hocking, 115 Pa. 398. It was argued here that as the company by tbe policy were not liable for a greater sum than two thirds of the actual cash value of the building burned, if a recovery could be had in this case at all it would only be for two thirds of the amount fixed by the appraisers. B at it will be observed tbat tbe appraisement was not of tbe value of the building; it was of tbe damage done; and a proper deduction was made for the walls, materials, and portions of the buildings saved. The appraisers did not value the building; they were not selected for that purpose.

The judgment is reversed, and a venire facias de novo awarded.