Welsh v. London Assurance Corp., 25 A. 142

Welsh v. London Assurance Corp.

25 A. 142

Pa.

1892

Check Treatment

Opinion by

Me. Justice Mitchell,

Eight of the eighteen assignments of error relate to the notice of the fire and the proofs of loss. As to the notice, Cluff testified that Ray, the adjuster, was sent to the place under instructions from himself or the company, and it is undisputed that Ray was there a week after the fire. This was conclusive evidence of notice to the company.

As to the proofs of loss, although they are concеded to be informal they come plainly within the rule laid down in Gould v. Insurance Co., 184 Pa. 570, 588, and the circumstances under which they were delivered, put upon defendants the duty of notifying the plaintiff of their objections, if the want of form was to be relied upon. The failure to give such notice ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was evidence for the jury of a waiver. But it is said that the proofs of loss were not sent to the company as required by the pоlicy but left at the office of the local agent, Barbour; and Trask v. Ins. Co., 29 Pa. 198, and Edwards v. Ins. Co., 75 Pa. 378, are relied upon to show that such delivery is not sufficient. In both these cases the policy required the notice to be given “ forthwith ” and to the company, and it was held that unexcused delays of eleven and eighteen days respectively, were unreasonable and should be so pronounced as matter of law. And in Edwards v. Ins. Co. it was said that the local agent had no authority to receive the notice and was not bound to communicate it to the company. But since these decisions, the act of June 27, 1883, § 1, P. L. 165, has practiсally given a legislative definition of reasonable time by fixing the period of ten days for notice of the fire and twenty for the proofs of loss, and has settled the question of the agent’s authority by enacting that the notice and proofs may be delivered to the company at its general office or to the agent who countersigned the policy. There was evidence to justify submitting these matters to the jury in the way it was done, and the assignments of error relating thereto must be dismissed.

The substantial defence was upon the admitted fact that the insurance was on the full value of the fee in the land, while the plaintiff’s interest was only a life estate. Unexplained this was a solid defence on the merits, and the burden of explanation was on the plaintiff. It was testified by Neeley that he wrote the application for insurance for the plaintiff at her re*617quest, and that her interest in the house was correctly stated therein as “ a life lease.” This application was sent or given by Neeley to Barbour, who by his own testimony had authority to write up the policy by inserting the description of the insured interest in the land, and did so in this case. The application was not produced by defendant, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍nor was Neeley’s testimony аs to its contents in any way contradicted. Upon the evidence therefore it was plain that the defendant had issued the policy with knowledge of the actual condition of the title, and the mistake in the description was that of its own agent which it could not set up as a defence : Burson v. Fire Assoc., 136 Pa. 267; Columbia Co. v. Cooper, 50 Pa. 331; Ins. Co. v. Webster, 59 Pa. 227; Meadowcraft v. Ins. Co., 61 Pa. 91; Eilenberger v. Ins. Co., 89 Pa. 464. The learned judge below declined to affirm the defendant’s points and to say as matter of law thаt the policy was void, but submitted the case to the jury with full and explicit instructions as to the presumption in favor of the policy being the precise and definite contract, and the burden of proof resting on the plaintiff. Under the evidence this was the only proper disposition to make of it.

The question of the measure of damages is not free from difficulty, owing to the meagreness of its presentation by both parties. Undoubtedly the general rule that the insured cannot recover more than his actual loss, or the value of his interest, would, without more, limit the recovery of a life tenant as of a lessеe, to the value of his unexpired term. See Wood on Fire Ins. 481. But it is equally true that a carrier, or custodian, or agent may insure in his own name, and recover the entire loss, standing as a trustee for all the аmount recovered in excess of his interest: Wood on Fire Ins. 617, 632, 1121 and cases cited. In Miltenberger v. Beacom, 9 Pa. 198, it was said, “ the contract of assurance, like other contracts, may be effectеd by the agency of a third person, without the authority of the person to be benefited, if he subsequently recognize it. It is true that to enable the beneficiary to sue upon it directly he must be expressly named.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍In the present case Neeley testified that there was some talk with plaintiff as to the name in which the insurance should be taken, she saying that some one thought it had better be in the name of the executor or administrator but she thought as she had control of it it had better *618be. in her name. This, in connection with the fact that the full premium was paid and the policy issued for the full value of the fee, may fairly bе taken to indicate the real intent of the parties to insure the whole for the benefit not only of the plaintiff as life tenant, but also of the remaindermen. The company is in no position to contest this intent, for with notice in the application that the plaintiff was only life tenant, it charged the full premium and issued the policy on the fee. It is in no danger of a second action by the remaindermеn, for they are not named in the policy, and on the authority of Miltenberger v. Beacom, they cannot sue directly and a suit through plaintiff would be barred by the present judgment. On the other hand the plaintiff by suing for аnd recovering on this evidence the. full value of the fee, has put herself in the position of trustee for the remaindermen as to the excess of the judgment over the value of her life interest. As the evidence on this branch of the case was entirely uncontradicted the jury would not have been justified in taking any other view of it, and therefore the instructions on the measure of damages, though not so explicit as might be necessary in a contested case, cannot be held erroneous.

There remain to be considered only the seventh and eighth assignments, in regard to the denial of liability for spеcified reasons, as a waiver of other defences. The only ground upon which such a result can rest is estoppel. No party is required to name all his reasons at once, or any reason at all, and the assignment of one reason for refusal to pay' cannot be a waiver of any other existing reason, unless the other is one which could have been remedied or obviated, and the adversary was so far misled or lulled into security by the silence as to such reason that to enforce it now would be unfair or unjust: Ins. Co. v. Brown, 128 Pa. 386. The whole doctrine depends on estoppel, and the еssential feature of it is loss or injury to the other party by the act of the party to be estopped. In this respect there is nothing peculiar about actions upon insurance policies. They stand on the same footing as other ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍litigation. But it has been held that preliminary proofs of loss, though essential are in their nature formal, and “ a condition precedent not to the undertaking of the insurer, but to the right of action of the insured: ” Strong, J., in Ins. Co. v. Stauffer, 33 Pa. *619397. Substantial compliance with tbe requirements of tbe policy is therefore all that is necessary, and the jury may infer a waiver from the acts of the parties. The rule on this subject was carefully formulated in Gould v. Ins. Co., 134 Pa. 570, 588, as follows: If the insured in good faith and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy, good faith equally requires that the company shall promptly notify him of their objections so as to give him the opportunity to obviate them; and mere silence may so mislead him to his disadvantage tо suppose the company satisfied, as to be of itself sufficient evidence of waiver by estoppel. The circumstances under which plaintiff herself took the list and estimate to Barbour, were, as already said, sufficient under the above rule, to take the case to the jury on the question of waiver, and therefore the instruction complained of in the seventh assignment was proper. Thе plaintiff’s fifth point, however, that if the authorized agents of the defendants refused payment of the loss, giving a specified reason therefor to the plaintiff, they must be confined to that reason upon the trial, and the jury should disregard any other defence now made by them, was entirely too broad and its affirmance as a general proposition of law would be clear error. It ignores the elements of estoppel, and lays down a rule without reference to conditions essential to its existence and applicability.

The cases cited by appellee do not sustain the prоposition ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in its breadth as put. In Ins. Co. v. Dougherty, 102 Pa. 568, Ins. Co. v. Erb, 112 Pa. 149, and Ins. Co. v. Enseminger, 12 W. N. 9, there was a positive refusal to pay at all, on grounds that the proofs of loss would not have cured, and it was held that the latter were therеfore waived; and in Pipe Lines v. Ins. Co., 145 Pa. 346, a like positive refusal to pay was held evidence of a waiver of the period of sixty days allowed by the policy for adjustment and payment of the loss. All of these cases rest upon the substantial element of estoppel, that the defendant having led the plaintiff to suppose that a compliance with the preliminary formalities would be unavailing, could not thereafter set up the want of such preliminaries. Of the soundness of that principle there can be no question.

But it is not fair to the learned court, or to the case, to take *620his language apart from the special facts under consideration, and an examination of the record and the assignments of error fails to disclose any defence which the appellant undеrtook to make, that was improperly shut out by this instruction. While therefore its language was too general, and would not bear application to other circumstances, yet it could not have misled the jury in the present case, and therefore did the appellant no harm.

Judgment affirmed.