Universal Mutual Fire Insurance v. Weiss Bros., No. 190

No. 190 | Pa. | Apr 14, 1884

Mr. Justice Gordon

delivered the opinion of the court,

The contract of the parties litigant is to be found in the policy, and the conditions thereto attached, and to the terms and provisions of the agreement, as found in those papers, both parties must be held or neither. The insurance company can only be made responsible for the alleged loss, under the policy, by a showing by the Weiss Brothers of the performance of the conditions of that instrument on their part. To hold otherwise would be a mere travesty of justice. The principle here stated is not, indeed, denied, but an attempt has been made to avoid its effect by the interposition of the doctrine of estoppel. It is said, and so the court below permitted the jury to find, that the defendant, through its chief officer, acted in such a manner as to induce the plaintiffs to believe that it had or would waive the conditions, the breaches of which are now set up as a defence, and that it was thus estopped from taking advantage of the alleged want of conformity to the contract an part of the plaintiffs.

If the statement here made has been sustained by the proper proofs, and if, by reason of the acts and declarations of the agent of the company, the plaintiffs were induced to abstain from doing that which they otherwise would have done in the way of performance, then, and in that case, the defendant’s contention can avail .nothing in this court, and the judgment must be affirmed; for the principle here stated is so abundantly supported by authority that an attempt to overthrow it must fail of success. But when we come to look for the proofs by which the plaintiffs undertake to sustain their proposition, we are not able to discover them. The language of the sixth condition is as follows: “ The use of general terms, or anything less than a distinct, specific agreement, clearly expressed and indorsed on this policy, shall not be considered a waiver of any written or printed condition or restriction therein.” There is here no shadow of ambiguity; the language is plain, specific and positive; there shall be no waiver unless the agreement expressing it be indorsed on the policy. But we look in vain for anything like the waiver here prescribed. ■ How then were the plaintiffs released from their engagement to furnish to the company, within a reasonable time after the fire, a particular and sworn statement of loss ? And where is the proof, oral or written, by which the plaintiffs were released from the twelfth condition, which requires that suit should be brought, if at all, within six months from the date of the loss ? As to the first of these interrogatories, an answer is attempted in the allegation that A. T. Crosse, the president of 'the defendant, soon after the fire, made a promise to Reuben Weiss, one of the plaintiffs, that when he got home they would make out a check and send it to him. To this, however, it is objected, that the evidence here stated furnishes no intimation of even an oral waiver of proofs of loss; that Crosse, taking it for granted that the plaintiffs would not neglect to comply with the condition, might have made the alleged promise, without the slightest intention of binding the company, which.he represented, to what would in effect be a new contract. It is also objected, that a conversation of this kind is denied by Crosse, and that the chief design of the introduction of the stipulation requiring all waivers to be in writing, was for the purpose of avoiding just such disputes. Still another objection to this answer of the plaintiffs* as above stated, is, that whilst George Weiss, the father of those constituting the plaintiff firm, professes to have heard this conversation, yet as Reuben appears to have no recollection of the matter, he either could not have heard it, or having heard it, he gave it so little attention that it was neither impressed on his memory nor affected his action, and that in either event no delay or damage resulted to the plaintiffs therefrom ; hence, the defendant could not thereby be estopped from insisting upon tlie letter of the contract.

We think these objections to the plaintiffs’ effort to escape from the plain terms of their agreement are sound, and should have been so treated in the court below. For further answer to the interrogatory above proposed, it is said: The policy is a valued one, and for that reason an itemized statement of loss was not necessary. We, however, cannot regard this as a valued policy. We have in the case of buildings, where there was a total loss, held that the policies were of this nature, and this for the reason that when the assured had given notice of the total loss of the building covered by the policy, he could do no more; there are, in such case, no particulars to detail, hence, further notice cannot in reason be required. But we have never so held with reference to the contents of a building consisting, as in this case, of a variety of articles. And though this term “ valued policy ” has been used as above stated, yet it does not strictly apply, for its proper application is to such cases only where a valuation is fixed upon the underwritten property by way of liquidated damages, and for the purpose of avoiding a subsequent valuation of the property in case of loss: 2 Bouv. L. Diet., 845. Of course, where such is the contract of the parties they must be held to it, but that such is not the nature of the policy under consideration is obvious from the very terms of it.

The second of our questions remains wholly unanswered; for there is not even the pretence of the waiver of that condition which required suit to be brought within six months after the loss. This is an independent condition and cannot be made to depend on the waiver of precedent conditions. Had the loss been regularly adjusted, as provided for by the policy, still the limitation was in force; suit must have been brought within the time prescribed, and the neglect of this provision must necessarily, if a contract of this kind is woxtli anything, bar a right of action on part of the assured.

To say, therefore, that Crosse’s agreement to send a check for the amount of the loss, in any way affected this stipulation, or to submit such a question to the jury, was a mistake. Insurance Co. v. Conover, 2 Out., 384.

As what we have already said, disposes of the case radically, and sustains the defendant’s 18th point, we are relieved from a more particular discussion of the assignments.

The judgment is reversed.