Bobereski v. Ins. Co. of State of Pennsylvania

• Decision Date: 14 July 1932
• Docket Number: 24-1932
• Citation: 105 Pa.Super. 585,161 A. 412
• Parties: Bobereski, Adm. v. Ins. Co. of the State of Pennsylvania, Appellant
• Court: Pennsylvania Superior Court

161 A. 412

105 Pa.Super. 585

Bobereski, Adm. v. Ins. Co. of the State of Pennsylvania, Appellant

No. 24-1932

Superior Court of Pennsylvania

July 14, 1932

Argued March 8, 1932

Appeal by defendant from judgment of C. P., Columbia County, May T. 1928, No. 10, in the case of John Bobereski, administrator of the Estate of Mary Fedas Richiy, deceased, v. The Insurance Company of the State of Pennsylvania.

Assumpsit on a policy of fire insurance. Before Evans, P. J.

The facts are stated in the opinion of the Superior Court and in the case of Fedas v. Insurance Company of the State of Pennsylvania, 300 Pa. 555.

Verdict for plaintiff in the sum of $ 2,381.08 and judgment entered thereon. Defendant appealed.

Error assigned, among others, was the admission of certain evidence.

Reversed.

Horace Michener Schell, and with him R. S. Hemingway, for appellant cited: Standard Sewing Machine Co. v. Royal Insurance Co., Ltd., 201 Pa. 645; Rosenberg v. Fireman's Fund Insurance, 209 Pa. 336; Gratz v. Insurance Company of North America, 282 Pa. 224; Cole Bros. v. Fire Assurance Co., 188 Pa. 345.

E. J. Mullen, and with him G. W. Moon, for appellee, cited: Pennsylvania Fire Insurance Co. v. Dougherty, 102 Pa. 568; First National Bank of Mildred v. Home Insurance Co., 274 Pa. 129.

Before Trexler, P. J., Keller, Gawthrop, Cunningham, Baldrige, Stadtfeld and Parker, JJ.

OPINION

Keller, J.

This was an action on a policy of fire insurance. It was tried twice and twice appealed.

On the first appeal, to the Supreme Court, ( Fedas v. Ins. Co. of State of Pa., 300 Pa. 555, 151 A. 285), the questions before the appellate court were (1) whether the insurance company had waived the furnishing of technical proofs of loss; and (2) the measure of damages where there has been a partial destruction. It appears from the report of that case that at the first trial the insured had given evidence that she "met the adjuster [of the insurance company] who stated to her that the company would not pay the loss because she was criminally responsible for the fire." The Supreme Court held that denial of liability, on other grounds than failure to file proof of loss, constituted a waiver of the requirement to furnish formal proof of loss within sixty days.

At the second trial the plaintiff gave no evidence of any statement or representation by the insurance company's adjuster that it would not pay the loss because she was criminally responsible for the fire. On the contrary she testified that at the only meeting which she had with the adjuster, Bentley, which occurred about two weeks after the fire and two weeks before her arrest on complaint of the fire marshal for conspiracy to burn her dwelling with intent to defraud an insurance company, he had told her that the informal proofs of loss which she gave him at the time were all right; that the company was satisfied to pay her and would pay her; but that they would have to wait a week or two; that he wanted to know what Brosky, the fire marshal, was going to do; that Brosky said she knew something about the fire. "The company is satisfied to pay, but I have to wait a little bit . . . . I wait until next week; one week more; then the company come and settle with me."

This, if believed, constituted just as effective a waiver of the requirement of formal proof of loss, as the alleged denial of responsibility by the company at the former trial, for as was said by Mr. Justice Kephart, speaking for the court, when the case was before it, "Waiver may be inferred from any act evidencing a recognition of liability, or from a denial of liability on other grounds than failure to file proof of loss" (p. 559).

On this appeal, accordingly, the appellant, the insurance company, raises no question as to the correctness of the rulings of the lower court relative to the matters which were passed upon by the Supreme Court in the former appeal.

The statement of questions involved raises four points to be passed upon by us. We shall discuss them in the following order:

(1) We think, following the decision in Fedas v. Ins. Co. of State of Pa., supra, that the waiver of the requirement to file a proof of loss may be established by the testimony of one witness, the insured, even though it is contradicted by two witnesses, the company's agent and adjuster. It was permitted in that case. We are not here construing the policy of insurance nor reforming an instrument in writing. The waiver of the furnishing of formal proofs of loss by an authorized adjuster of the company is a question of fact to be determined by the jury. The courts have held that a waiver may be inferred from any act evidencing a recognition of liability or a denial of liability on some other ground. It may be shown by parol in express language, or may appear by necessary implication: Fedas v. Ins. Co. of State of Pa., supra. Waiver is a question of fact: Phila. Auto F. Co. v. Agric. Ins. Co., 102 Pa.Super. 1, 156 A. 625, and the cases there cited. It was the jury's function to decide whether they would accept plaintiff's story or that of the agent and the adjuster.

(2) Was there sufficient proof as to the cost of repairing the building? The policy limits the liability of the defendant company to the cost of repair or replacement with material of like kind and quality. The insured produced witnesses who testified as to the cost of the material and labor necessary to repair the building, but they had not made a careful survey of the kind of material that had been used in the original construction of the building and were not able to state the kind, grade and quality of all the lumber of which it had been built. As to some of it they figured on the type of material that ordinarily would be used in making such repairs. The court allowed their testimony to be submitted to the jury. This was supplemented by the evidence of a man who had worked on the construction of the house and was generally familiar with its materials. Of course, as to the parts destroyed by fire it is not always possible to state the exact material burnt or the precise cost of replacement; the kind and quality of the lumber must be approximated as nearly as may be, and allowance made for replacement of old material by new: Fedas v. Ins. Co. of State of Pa., supra, p. 563; this the insurance company in making its own estimate had to do. But as respects the part not destroyed by fire, inasmuch as the building had not been repaired, but was in substantially the same condition as it was after its partial combustion, the witnesses could have ascertained the kind of materials used in its erection. As it was, their testimony on this score was lacking in a material feature. In order to ascertain the cost of replacing the property. in, or as nearly as possible to, its condition at the date of the fire, the kind and quality of material entering into the original construction should, whenever possible, be stated and the cost of a substantial duplication be shown. However, this discussion is unnecessary because the defendant submitted evidence as to what the cost of the reconstruction would be and the jury adopted that amount and found for the plaintiff for that sum. The admission of the testimony did the defendant no harm.

(3) Both the Supreme Court and this court have repeatedly ruled that proofs of loss are not substantive evidence for the plaintiff, and that no part of them can be admitted for the purpose of establishing the amount of damages to be allowed the plaintiff in case of recovery. They are admitted in evidence to show a compliance with the requirements of the policy in that respect, but no part of them is to be read to the jury, at least, on behalf of the plaintiff: Rosenberg v. Fireman's Fund Ins. Co., 209 Pa. 336, 337, 58 A. 671; Baldi v. Metropolitan Life Ins. Co., 30 Pa.Super. 213, 221; Kittanning Ins. Co. v. O'Neill, 110 Pa. 548, 553, 1 A. 592; Cole v. Manchester Fire Ins. Co., 188 Pa. 345, 358, 41 A. 593; Lattavo v. Va. Fire Ins. Co., 88 Pa.Super. 433, 435. It was wholly immaterial, so far as proving the plaintiff's case was concerned, what amount she had claimed in her proofs of loss; she could recover only on the basis of the damages proved by her on the trial. Hence the court should not have allowed the plaintiff to read to the jury the amount of damages claimed in the proof of loss; but as the verdict of the jury adopted the figure fixed by the defendant's witness as the cost of replacing the building, we are satisfied its admission did the defendant no harm and would not reverse on that account.

(4) The insurance company's chief defense at the trial was that the plaintiff was concerned in the burning of the insured property. The fire was unquestionably of incendiary origin. The building was unoccupied at the time of the fire and had been for two or three weeks before it, and had had no artificial heat or light in it since the tenant's removal. The house had been set on fire in two places, one on the first floor at the stairs in the back of the house, the other in the front of the second story. Three empty five gallon kerosene cans...