Vinkelstein v. Northwestern National Insurance

63 Pa. Super. 538 | Pa. Super. Ct. | 1916

Opinion bt

Williams, J.,

This is a suit on a policy of fire insurance containing the usual clause that proofs of loss must be furnished by the insured within sixty days after the fire. A fire occurred January 5,1913. The proofs were sent and were received, but a dispute arose as to when they were received. The clause referred to was in the following words: "within sixty days after the fire......shall render a statement to the company, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured, etc.” Of course as a condition precedent to recovery the insured must show that they have complied with the terms of the policy in furnishing the proofs of loss, but whether they have done so or not in this particular case was a question for the jury.

At the trial the plaintiffs offered evidence to show that the proofs of loss were prepared March 3, 1913, were mailed at Scranton, March 4, 1913; were registered by the post office authorities; had a special delivery stamp thereon and were put on the train leaving Scranton at 1:50 p. m., March 4, 1913. The plaintiffs called a wit“ness, the assistant postmaster who testified that he had been connected with the postal department of the City of Scranton between six and seven years and that he was familiar with the usual time for the transportation of mails between different points and particularly between Scranton and Milwaukee, Wisconsin, the home office of the insurance company. From the records in the post office it was shown that this particular piece of mail matter left Scranton on the 1:50 train, March 4, 1913, and the witness testified it should have reached Chicago the next morning and Milwaukee before 3:00 p. m. of the 5th day of March, 1913. He described fully the method of handling registered special delivery mail.

The defendant called no witnesses to controvert these facts nor to show when the package was actually received by it, but offered in evidence the return register receipt showing the following “Date of delivery March 6, 1913, Northwestern National Ins. Co. per Jos. Huebl, Secy.” It would have been an easy matter to have called Jos. Huebl qs a witness or at least taken his deposition and thus submitted him to cross-examination. However, this was not done.

The question was left to the jury, which by the verdict found, must have believed the contention of-the plaintiffs that the proofs were received in time. We are of the opinion that this settles the question in favor of the plaintiffs and we need not discuss the question of waiver. The court under the evidence could not direct a verdict for the defendant nor enter judgment non obstante veredicto.

The assignments of error are overruled and the judgment affirmed.