American Fire Ins. Co. v. Hazen

• Decision Date: 09 November 1885
• Docket Number: 57
• Parties: American Fire Insurance Company v. Hazen
• Court: Pennsylvania Supreme Court

1 A. 605

110 Pa. 530

American Fire Insurance Company v. Hazen

No. 57

Supreme Court of Pennsylvania

November 9, 1885

Argued October 12, 1885

ERROR to the Court of Common Pleas of Mercer county: Of October and November Term 1885, No. 57.

This was an action of debt by W. B. Hazen and W. A. Hazen co-partners trading as W. B. Hazen & Son, on a policy of insurance, issued by the American Fire Insurance Company, to recover damages for loss by fire of certain premises of the plaintiffs, covered by said policy. Plea, nil debet.

On the trial, before MEHARD, P.J., the following facts appeared: On June 1st, 1882, the plaintiffs effected an insurance with the defendant company in the sum of $1,000 on their flouring mill, machinery and fixtures. The application for the policy provided, inter alia, as follows: "If the insured shall have or make any other insurance on the property herein insured, or any part thereof, without written notice to, and the consent of this company hereon . . . then and in every such case the policy shall be null and void."

The policy provided that "the insured under this policy sustaining loss or damage by fire, shall forthwith give notice in writing of said loss to the company and as soon thereafter as possible render a particular account by separate items, and proof thereof signed and sworn to by the assured," setting forth certain matters specifically mentioned.

On February 16th, 1883, the entire building and contents were destroyed by a fire, which was the work of an incendiary.

Notice of loss was immediately furnished the company; proofs of loss were furnished prior to May 10th, 1883, but were returned as defective. These defects were remedied and a subsequent proof of loss was sent and its receipt acknowledged by the company October 20th, 1883. This was also alleged by the company to be defective. W. B. Hazen was at the time of the fire and for a long time afterwards in feeble health and claimed that from February until August 1883, he was totally unfit for and did not pretend to do any business whatever, and that as soon as he was sufficiently recovered, he gave the matter his attention and on August 30th, 1883, made out the proofs.

Defendant denied the right of plaintiffs to recover in this action First, because the proof of loss furnished by plaintiffs, and on which plaintiffs rely, is defective in several particulars. Second, because this proof was not furnished within the time stipulated in the policy on which this action is based; and third, because, as the defendants allege, the property insured was burned by one of the parties plaintiff.

Defendant offered in evidence the record of a judgment for $945 in favor of Emma Seedle against W. B. Hazen, filed February 8th, 1883, for the purpose of showing a motive on the part of plaintiffs in incumbering the property and afterwards burning it. Objected to as incompetent, because no such defence was set up in the affidavit of defence and under the rules of court no matter, unless so specified in the affidavit, can be set up at the trial, also because the judgment was against W. B. Hazen individually and not against the firm.

THE COURT. "As there is no plea or statement in the affidavit of defence filed claiming that the policy was void on account of any incumbrance on the property, the objection is sustained, so far as the offer is made for that purpose." Exception. (Fifth assignment of error.)

Defendant offered in evidence the record of an action in the same court by the Susquehanna Mutual Fire Insurance Company against Wm. B. Hazen, and especially that part relating to an application by Mr. Hazen for insurance in The Susquehanna Fire Insurance Co. for $1,500, dated the 12th of June, 1879, for the term of five years. Offered for the purpose of voiding the policy in suit under the rules of the defendant company.

Objected to by plaintiffs. "(1.) Because the papers in the case show that the policy is not in force. (2.) Because there is not such plea in this case alleging any such policy. (3.) That under the Acts of Assembly applications are no parts of policies or no parts of the contract unless attached to the policies themselves and printed with the policies. (4.) That even if it should be an application to the defendant company, the defendant could not offer it in evidence here." Objection sustained. (Sixth assignment of error.)

In rebuttal, plaintiffs proposed to ask certain witnesses questions to prove the reputation of the plaintiffs in this case as peaceable, orderly, honest and good citizens to rebut the allegation made against them that they burned this mill.

Objected to by defendant upon the ground that it is incompetent, and also that the Statute of Limitations would bar any prosecution against the plaintiffs for the burning of this mill, and that they are now in a position that no indictment can be framed against them. Objection overruled and evidence admitted. Exception. (Seventh assignment of error.)

Defendant requested the court to charge, inter alia, as follows:

1st. "If the jury find as a fact from the evidence that the fire occurred on the 16th of February, 1883, that the proof of loss filed in this case was sworn to by the plaintiffs on the 30th of August, 1883, and should find as a further fact that the same was not forwarded to the defendant company until the 15th of October, 1883, a period of eight months, then they have not complied with the terms of the policy and the verdict must be for the defendant." Answer. "Refused as explained in the general charge." (First assignment of error.)

2d. "That if the plaintiffs or either of them have permitted any incumbrance on the property insured during the existence of the policy and before the date of the fire, without the consent of the company endorsed on the policy, then the policy by its terms is void and the plaintiffs cannot recover." Answer. "As the question raised by this request is foreign to the issue raised by the pleadings in the case, the request is refused." (Second assignment of error.)

3d. "That under the facts of this case, as they appear from the papers on file, it is a question of law for the court whether the proofs of loss have been furnished in compliance with the terms of the policy and should not be submitted to the jury." Answer. "Refused." (Third assignment of error.)

5th. "That under the law and the evidence the plaintiffs cannot recover." Answer. "Refused. Whether or not the plaintiffs can or can not recover is submitted to you in view of all the facts in the case." (Fourth assignment of error.)

The court charged the jury, inter alia, as follows:

"About October 15th, 1883, the plaintiffs furnished the proof of loss which is in evidence, and which, I instruct you, is a sufficient proof, so far as form and substance is concerned, and the question whether it was furnished within a reasonable term or not, I leave to you for you to determine in view of the circumstances of this case. If sufficient reason for so long delay has not been affirmatively shown by the plaintiffs, their neglect to comply with the requirement of their policy is fatal to their claim, and plaintiffs cannot recover. In this connection you will consider the items which the policy required to be expressed in this proof, the exactness of the proof which the company required, as shown by their letters of May 10th, 1883, and the difficulty a person of ordinary intelligence and information would have, under the circumstances in getting such proof as the terms of the policy or the requisitions of the company required. If the plaintiffs used all reasonable means and exertions by themselves or through their agent or attorney to get together the requisite facts for a proof of loss, and to furnish such information as the company desired, and in so doing were unable to perfect the proof and furnish it to the company until the time the final proof in this case was furnished, their delay would not bar their recovery. . . . You will also consider the evidence which has been given as to the character of W. A. Hazen, because where one is shown to be a man of good character for honesty, for peace and for good order, it is a fact which should weigh with the jury before they would come to the conclusion that he would be guilty of such an offence -- it is one fact to be weighed with others, and all are to be taken together."

Verdict for plaintiffs for $1,046.70 and judgment thereon. Defendant thereupon took this writ, assigning for error the ruling upon the evidence, the answers to the points and the portions of the charge above noted.

The judgment is reversed and a venire facias de novo awarded.

S. R Mason (R. J. Mason with him), for plaintiff in error. -- As a rule the court leaves the jury to find under all the facts in the case what is a reasonable time in which the assured must make his proofs of loss and forward them to the company. But where delay is unreasonable and unexplained, it is...