272 Pa. 386 | Pa. | 1922
Opinion by
This is an action on four policies of insurance, issued by defendant to plaintiff, covering hogs, the property of the latter, and shipped to him at Pittsburgh from St. Louis. On arrival of the hogs at destination, it was ascertained a number of them were dead and others crippled. Claim was made by the insured to the insurance company for the loss suffered, liability was denied, suit was brought and recovery had for the full amount claimed; from the judgment entered on the verdict comes this appeal.
Appellant presents these propositions challenging plaintiff’s right to recover: (1) No proofs of loss were
Whilst it is true no formal proofs of loss were furnished, and the policies did provide for their submission to the company within twenty days after loss, yet it is undisputed that, a few days after the arrival of the shipments at Pittsburgh, invoices were sent by plaintiff to defendant showing the number of the dead and crippled hogs, together with their average weight, and a statement of the amount of loss claimed. In addition to this, about thirty days after the loss was ascertained, the superintendent of claims of defendant called on plaintiff, and requested copies of the bills of lading, which were furnished; later, the same official wrote a letter to the insured, referring to his visit, in which he said “at which time you handed me certain papers in support of your bills against this company.” In this communication, no mention was made of the failure to furnish proofs of loss, and liability was denied, not on that ground, but because of the special stipulation as to delays in transit, written by the carrier into the bills of lading.
There can be no question of the full knowledge by the insurance company of the loss well within the twenty days, that it investigated and made no denial the loss had been sustained; nor did defendant question the amount claimed. It also appeared by the letter referred to that, within the twenty days, plaintiff had endorsed, and turned over to defendant, checks drawn to plaintiff’s order by a bank in Indianapolis covering the amount received from the sale of dead and crippled
Was it error to admit in evidence, on plaintiff’s offer, the books of the Pittsburgh Union Stockyards, showing the condition of the hogs when received there? It was testified, by the traffic manager and yardmaster of the stockyards, that a record is kept of the car number of every car from which stock is unloaded, the number of animals discharged from it, whether dead or alive, and whether anything appears to be wrong with them. Testimony was received, from clerks who made the entries, and from the traffic manager, after identifying the handwriting of a clerk, who was beyond the jurisdiction of the court, as to the number of hogs shown by the books to be dead in the cars on their arrival and the numbef found crippled, for the purpose of establishing plaintiff’s loss. It is argued that this evidence was incompetent. The general rule is that a person’s books of account cannot be used as evidence upon issues between third persons; that entries in such books as to such
While the earlier rule denied the admissibility of books of account, in issues between third persons, the modern tendency is to widen the door to their admission. This grows out of the magnitude and complication of modern business. No longer does the owner of hogs personally drive them to market; whether they have arrived at their destination in most instances cannot be known to him, he can only show they did or did not, by some such agency of transportation as that summoned here, a railroad stockyard, into which go livestock shipments consigned to great centers of population; their books are not alone the only evidence which is available to show delivery and condition when received, but in these days they are usually the best available evidence of such facts. As the law always seeks the best evidence, so, when new and more certain methods of ascertainment and proof arise, the law, moving forward with and accommodating itself to the trade customs of the age it is serving, will make use of those means, which trade itself has developed, as an aid to certainty in recording transactions as they occur.
Pennsylvania has recognized the need of easier methods of proof than the common law afforded, as to matters in which carriers are concerned, and, by the Act of May 25, 1897, P. L. 82, 1 Stewart’s Purdon 619, has provided that, in suits brought in the courts of the Commonwealth, in which accounts kept by common carriers, and certain other public corporations, are involved, on
We now come to the last question which the record raises: The policies providing for “clear” bills of lading, and plaintiff having permitted extra conditions to be added to them, did this render the policies void? By a “clear” bill of lading, as we understand it, is meant, the uniform livestock shipment form thereof without superadded conditions. Across the face of the bills of lading, covering the shipments in this case, was stamped, “Accepted subject to delay on account of extreme weather conditions,” or words of equivalent meaning. There is no proof that defendant had notice of this condition, inserted in the contract of carriage, before it issued its policies, but it is most significant that, in its policies it has the car numbers, as given in these documents, as well as the lines of railroad over which the shipments were to be made as appearing therein; however this may be, and whether the defendant had notice of the added condition or not, there was no proof of any delay in shipment from weather conditions or other causes. It might be sufficient to point out, to answer the contention now made, that no such defense as that set up, covering additional conditions to the bills of lading, appears in the affidavit of defense, and this defense was therefore not available to defendant. “Neither party shall be permitted at the trial to make any defense which is not
We have considered all questions which appellant has raised; on none of them do we agree with its contentions. The assignments of error are overruled and the judgment is affirmed.