Commonwealth Insurance Co. v. Sennett et al.

• Decision Date: 06 January 1862
• Citation: 41 Pa. 161
• Parties: The Commonwealth Insurance Company <I>versus</I> Sennett <I>et al.</I>
• Court: Pennsylvania Supreme Court

41 Pa. 161

The Commonwealth Insurance Company versus Sennett et al.

Supreme Court of Pennsylvania.

January 6, 1862.

ERROR to the Common Pleas of Erie county.

W. A. Galbraith, for plaintiff in error, cited and relied on Thurston v. Murry, 3 Binn. 326; Kline v. The Franklin Insurance Company, 1 Harris 247; Flemming v. The Insurance Company, 2 Jones 391; and Sexton v. The Montgomery County Insurance Company, 9 Barbour 200.

G. Church and James C. Marshall, for defendants in error, sustained the ruling of the court below, by reference to Phillips v. Tappen, 2 Barr 323; 1 Bald. Rep. 539; 3 W. & S. 109, 111; 4 Id. 14; 15 Johns. 424; 2 W. C. C. C. Rep. 155; 1 T. & H. Pr. 509; 16 S. & R. 97; 2 Barr 86; 17 S. & R. 142; 2 Rawle 177; 5 Binn. 238; 4 Watts 165; Co. Litt. lib. 3, cap. 5, § 366; 1 Inst. 227, B; 3 Barr 21, 52, 154; 2 W. & S. 226; 4 Barr 123; 5 Id. 41; 5 W. & S. 188; 7 S. & R. 273, 276; 1 Penna. Rep. 364; 4 Watts 199, 477; 3 W. & S. 377; 8 Watts 288; 1 W. & S. 284.

The opinion of the court was delivered, January 6th 1862, by READ, J.

Sixty-five years ago, it was decided by the Court of King's Bench that what are called preliminary proofs were conditions precedent to the right of the assured in a fire policy to recover, and the judgment was arrested because it was not alleged in the declaration that the certificate signed by the minister and churchwardens, as required in the printed proposals referred to, and incorporated into the policy, was not procured: Worsley v. Wood, 6 Term R. 710. Lord Kenyon says: "That this is a prudent regulation, this very case is sufficient to convince us; for it appears on the record that soon after the fire, the assured delivered in an account of their loss, which they said amounted to 7000l.; that they obtained a certificate from some of the reputable inhabitants that the loss did amount to that sum, and that the jury, after inquiring into all the circumstances, were of opinion that the loss did not exceed 3000l., and yet it is stated that the minister and churchwardens, who refused to certify that they believed that the loss amounted to 7000l., wrongfully, and without any reasonable or probable cause, refused to sign such certificate."

This case was reaffirmed in Mason v. Harvey, 8 Exch. 819, where it was held that the delivery of particulars of the loss sustained, within three calendar months after the fire, to the secretary or agent of the company, was a condition precedent to the right of the assured to recover for the loss. The question was raised by a special plea, which was demurred to. "Such a condition," says Chief Baron Pollock, "is in substance most reasonable; otherwise a party might lie by for four or five years after the loss, and then send in a claim, when the company perhaps had no means of investigating it." In Roper v. Lendon, 28 Law J. R. Q. B. 260, where the particulars were required to be delivered within fifteen days after the loss, Lord Campbell said: "Mr. Jones very properly admitted that the delivery of particulars is a condition precedent to the plaintiff's right to recover, and that being so, the whole of the condition as expressed in the policy must be precedent to the plaintiff's right to recover. The delivery must be within fifteen days after the fire, and it is very reasonable that it should be so, it being of the utmost importance to the company to know, as soon after the loss as possible, the exact amount for which the plaintiff claims compensation."

The same doctrine prevails in this country, and is too well established to require the aid of authority. We have also adopted the rule that the whole or any part of the preliminary proofs may be waived by the insurer, and the effect of such waiver is well put by my Brother Strong, in The Inland Insurance and Deposit Company v. Stauffer, 9 Casey 404. "Surely it cannot be contended," says he, "that it was not competent for the insurers to waive performance of a formal condition introduced solely for their own benefit. At most, it was a condition precedent not to the undertaking of the insurers, but to the right of action of the insured. It is no new doctrine that insurers may waive objection to defective compliance with such a stipulation, or to entire non-compliance, and that such waiver in effect strikes the condition out of the contract. Nor need the waiver be express. It may be inferred from acts of the insurers evidencing a recognition of liability, or even from their denial of obligation exclusively for other reasons."

It is clear, therefore, that the preliminary proofs only become important when made so by the conduct of the insurers, for whose security and information only are they required. If, therefore, the insurers do not object to their regularity, for they may be in strict conformity to the conditions of the policy, and yet entirely untrue, the insured cannot avail himself of his own statements to prove his own loss or the particulars of it, nor is there anything in the policy itself to vary the common law rule of evidence on this point. The insured cannot make evidence for himself, or otherwise the insurer would be entirely at the mercy of an unscrupulous man, who might easily double the actual amount of his loss.

This view of the use of preliminary proofs has always been taken in Pennsylvania. In Thurston v. Murray, 3 Binn. 326, a writing purporting to be a copy of a decree of the English Court of Appeals in admiralty cases not certified under the seal of the court, which had been lodged with the broker through whom the insurance was effected, among other documents, to prove the loss, was offered in evidence by the plaintiff. The defendant's counsel objected to the reading of this paper to the jury, but it was permitted to be read, not as evidence of the truth of the matter contained in it, but as evidence of a communication from the assured to the underwriter. "This point," said Chief Justice Tilghman, "involves a question of considerable importance, whether the assured shall be permitted to bring before the jury papers which in themselves are not legal evidence. It is agreed that the copy of the decree was not per se evidence. Why then should it be read? Because, say the plaintiffs, it was exhibited to the defendant's broker as one of the proofs of loss, and it is expected by the underwriters that these proofs of loss should always be exhibited. Upon the same principle, every paper which the assured wishes to read, however improper in itself, may be brought before the jury; for it is in his power to lay before the broker what papers he pleases. Although the underwriters expect that the assured should inform them of all material intelligence received respecting the loss, yet it does not follow that in case of dispute it is their intention that illegal evidence shall be introduced at the trial. If the defendant had charged the plaintiffs with improper conduct, in withholding from him the information which they had received respecting the loss, it might be necessary to obviate that objection by proving that ...