Thomas v. Western Insurance

5 Pa. Super. 383 | Pa. Super. Ct. | 1897

Opinion by

Willard, J.,

The appellee entered into a contract of insurance with the appellant on August 15,1894, by the terms of which, in consideration of the sum of $40.00 paid the company by the appellee, it agreed to insure her property in the sum of $1,000 for the term of one year, which property is described in the policy as follows: “$750 on her three story frame, shingle roof water power gristmill building, 70x50 feet. Situate at Thomas Mills, in Elder township, Cambria county, Pa.

“ $250 on all fixed and movable machinery, belting and tools contained therein.”

There was other concurrent insurance on the same property amounting to $2,500.

On March 4, 1895, the property was totally destroyed by fire. Suit was subsequently brought resulting in a verdict of $1,000 in favor of Mrs. Thomas, upon which judgment was finally entered by the court for the sum of $750 being the amount of insurance upon the mill.

The record raises three questions: first, as to the agency of the person who delivered the policy and received and receipted for the consideration therefor: second, as to the sufficiency of the proofs of loss: third, as to the legality of the entry of the judgment on the verdict.

It requires no extended discussion or citation of authorities to establish the proposition that a person authorized to deliver a policy of insurance and receive and receipt for the premiums is the agent of the company for that purpose, and the payment of the premium to him- is a good payment. The evidence discloses the fact that in the transactions between the parties,subsequent to the fire, the company sent to Patterson certain notices and papers with express instructions how and when to serve them upon the assured. In these transactions Patterson was acting by express authority of the company and must be regarded as its agent. It is immaterial, however, in what capacity he was acting; the evidence discloses that the notices sent by Mrs. Thomas through him were delivered to the company. The first objections to the proofs of loss were received by the assured. She alleges that the second objection was not received by her, but as the trial judge ruled that her amended proofs were defective as to the claim for machinery, and set aside that pai’t o£ the verdict predicated thereon, it is unnecessary to waste words in the further discussion of this branch of the case. The first, fourth, thirteenth, fourteenth and fifteenth assignments of error are overruled.

In the policy there is a provision that the loss shall be payable in sixty days after the rendition by the assured of a statement to the company signed and sworn to by her, stating her knowledge and belief as to the origin of the fire, her interest and the interest of all others in the property, the cash value of each item thereof and the amount of loss thereon, all incumbrances, all other insurance valid or invalid on the property, a copy of all the descriptions and schedules in all policies, any chqnge in the title, use, occupation, location, possession or exposure of said property since the issuing of the policy, and how and by whom the property was occupied at the time of the fire.

There is also another provision that if the company requires it, plans and specifications of the building fixtures or machinery destroyed or damaged shall be furnished.

In pursuance of the first of the above provisions a sworn statement was sent by the assured in due time and received by the company. To this statement the company objected first, because the assured had failed to render a detailed statement of the quantities and qualities of lumber used in the construction of the mill, together with the specifications of the building.

The assured was under no obligation to furnish the quantity or quality of lumber used in the building or the specifications, unless specifically required so to do, therefore, the first objection was frivolous and without merit.

The second objection was entirely uncalled for; the proofs contained a sufficient description of the written part of the concurrent policies and in this respect were in compliance with the terms of the policy.

The fourth objection to the proofs was that the amount of the properly saved and the value of the débris was not set forth. The proofs contained the sworn statement of the assured that the property was totally destroyed by fire and there is no provision in the policy requiring the assured to collect the ashes or to put an estimate upon their value. So far as the mill was concerned the proofs of loss were in compliance with the terms of the contract. If the appellant required the plans and specifications the way to get them was plainly pointed out in the policy. The assured was not obliged to furnish them unless specifically requested to do so. No such request was made.

In the third objection to the proofs, it was specified that they did not give the value in detail of each item of fixed and mov-. able machinery, belting and tools, together with their age and specifications. This defect the assured attempted to correct by amended proofs. She described the different articles of machinery, belting and tools, giving their condition and the time they had been used, but instead of specifying the value of each she gave their total value. This the court below held insufficient. In Boyle v. Ins. Co., 169 Pa. 349, the identical question here presented was considered by Mr. Justice Williams. The policy was upon a general stock of merchandise. The inventory attached to and made part of the proofs of loss specified the goods largely in lots, giving the entire value of each lot. In that case, as in this, the requirement of the policy was that the cash value of each item and the amount of loss thereon should be given. In delivering the opinion the learned justice said: “ This stipulation is not to be construed most strictly against the insured. Its object is to secure a full statement of the loss he claims so that the company may have notice and the necessary opportunity to test its correctness. We quite agree with the learned trial judge that the proofs of loss afforded a sufficient notice of the character and amount of the plaintiffs claim. If it had seemed as to any particular lot or class of goods to be wanting in clearness or precision, the attention of the insured should have been drawn to it and such further information asked for as was fairly necessary to an ascertainment of the loss. The law does not require the performance of useless things, or favor the arbitrary imposition of useless burdens. Substantial performance is enough.”

We express no opinion as to the effect of the company’s silence (if it were silent after receiving the amended proofs); good faith required the company to call the attention of the assured to any defects, if any existed, and failing to do it would be estopped from insisting upon a defense founded upon the omission in the proofs caused by its omission to object when its plain duty to do so was apparent. Whether objection to the amended proofs was served upon the assured or not was for the jury to determine under the evidence. The court below held the amended proofs insufficient as to the machinery and tools, and as that question is not before us, except incidentally, we can only say that if the amended proofs were received without objection the effect thereof would be as before indicated in this opinion. If properly objected to and the defects called to the attention of the assured and not remedied by her, it would not be compliance on her part with the terms of the policy requiring an itemized statement of the cash value of each item. The second, third, fifth, sixth, eighth, sixteenth and seventeenth assignments are therefore overruled.

The court below reserved the sufficiency of the proofs as a question of law, and by its opinion filed determined that they were sufficient as to the mill building insured for $750, but insufficient as to the machinery, etc., insured for $250, and entered judgment on the verdict for the amount on the mill. This it is contended by appellant was error, as the contract was entire. Undoubtedly it was entire as expressed in its terms, and a violation of any of its provisions wherein it is provided that such violation will avoid the entire contract, will have that effect. But under no construction can it be said that a mistake in the proofs of loss as to one item shall terminate the contract as to all other items. The proofs of loss are no part of the contract of insurance, nor do they create any liability to pay a loss. In this case they simply serve to fix the time when the loss becomes payable and when an action may be commenced to enforce liability. This is the plain effect of the statement of loss provided for in this contract as clearly contemplated by the parties thereto. The condition as to the furnishing a sworn statement after the fire is for the information of the company in arriving at the true value of the property damaged or destroyed, and because this information was defective as to a part of the property has never been held as terminating the entire contract. Where fraud or misrepresentation on the part of the assured is proved in effecting the contract as to any item insured, or where during the life of a policy any part of the property is incumbered or rendered more hazardous by the insured contrary to the terms of the policy, the entire contract is affected: Gottsman v. Pa. Ins. Co., 56 Pa. 210.

We are here called upon to reverse the judgment of the court below because certain information in the sworn statement furnished by the appellee after the fire was deemed insufficient as to certain articles insured and sufficient as to certain other property. This we refuse to do as it is not shown that the parties to the contract agreed and stipulated that failure to give satisfactory information as to certain items covered by the policy should work a forfeiture of the entire contract.

Under the evidence in this case the learned trial judge would have been warranted in allowing the jury to pass upon the question whether the appellant objected to the amended proofs when furnished, or not; and if not, a clear waiver of more specific information as to the value of each item of machinery would have been established. The judge held, however, as matter of law that there was a defect in the proofs as to the machinery, precluding recovery therefor. Under the circumstances there was no error in entering judgment for the loss on the mill. The tenth, eleventh and twelfth assignments of error are overruled, and the judgment affirmed.