Crawford County Mutual Ins. Co. v. Cochran

• Court: Pennsylvania Supreme Court
• Writing for the Court: Mercur
• Citation: Crawford County Mutual Ins. Co. v. Cochran, 88 Pa. 230 (Pa. 1879)
• Decision Date: 06 January 1879
• Parties: Crawford County Mutual Insurance Company <I>versus</I> Cochran et ux.

Page 230

88 Pa. 230

Crawford County Mutual Insurance Company versus Cochran et ux.

Supreme Court of Pennsylvania.

November 27, 1878.

January 6, 1879.

November 27th 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Error to the Court of Common Pleas of Crawford county: Of October and November Term 1878, No. 123.

COPYRIGHT MATERIAL OMITTED

A. S. Davis and J. W. Smith, for plaintiff in error.—The proof of loss was a condition precedent and necessary to a recovery: Inland Ins. Co. v. Stauffer, 9 Casey 397; West Branch Ins. Co. v. Helfenstein, 4 Wright 289; Bradley v. Lycoming Ins. Co., 16 P. F. Smith 9; Desilver v. State Ins. Co., 2 Wright 130. Estoppel is the true ground of waiver: Diehl v. Adams County Mutual Ins. Co., 8 P. F. Smith 444; Insurance Co. v. Slockbower, 2 Casey 199. Adams had no authority to waive a condition of the policy: Mentz v. Lancaster Fire Insurance Co., 29 P. F. Smith 475; Mitchell v. Lycoming Insurance Co., 1 Id. 402; Brewer v. Chelsea Mutual Fire Insurance Co., 14 Gray 203. There was no evidence to go to the jury that the company had waived the forfeiture resulting from the non-payment of the assessment. The court seemed to think the sending the notice of the second assessment was such waiver. The evidence was that it was sent by mistake, and this clearly could not be interpreted as a waiver: Diehl v. Adams County Mutual Ins. Co., supra. Nor did the transaction with Bemis bind the company. He had no authority to make any arrangement on behalf of the company: Hackney v. Allegheny Mutual Ins. Co., 4 Barr 185; Mitchell v. Lycoming Mutual Ins. Co., supra; Susquehanna Ins. Co. v. Perrine, 7 W. & S. 351; Columbia Ins. Co. v. Buckley, 2 Norris 293; Hummel & Co.'s Appeal, 28 P. F. Smith 320; Washington Mutual Fire Ins. Co. v. Rosenberger, 3 Norris 373 H. J. Humes and D. C. McCoy & Son, for defendant in error.— Conditions, being for the benefit of the company, may be waived by the acts of its officers and agents, and where there is evidence of such acts, from which the jury may infer the waiver, it is for the jury and not for the court: Coursin v. The Penn. Ins. Co., 10 Wright 323; Farmers' Ins. Co. v. Taylor, 23 P. F. Smith 342; Inland Ins. Co. v. Stauffer, supra; Commonwealth Ins. Co. v. Sennett, 5 Wright 161. The company having denied its liability, it was not necessary to make formal proofs of loss: Ætna Ins. Co. v. Tyler, 16 Wend. 401; Heath et al. v. Franklin Ins. Co., 1 Cush. 257; Clark v. New England Mutual Fire Ins. Co., 6 Id. 342; Underhill v. Agawam Mutual Fire Ins. Co., Id. 440; Taylor v. Merchants' Fire Ins. Co., 9 How. 390.

Bemis was in the habit of receiving assessments from policy-holders and paying them to the company and returning receipts. Such custom binds the company: Girard Life Ins. Co., Administrators of Megarge, v. Mutual Life Ins. Co. of New York, 5 W. N. C. 173; Lycoming Mutual Fire Ins. Co. v. Bedford, 2 Id. 529.

Mr. Justice MERCUR delivered the opinion of the court, January 6th 1879.

The evidence of a waiver of specific proof of loss was sufficient to submit to the jury. Within two or three days after the fire, the defendant in error went to the office of the company, and informed the secretary of the loss, and offered to pay some previous assessment. The evidence is conflicting as to whether it was to pay both the previous assessments, or the earlier one only. The secretary refused to accept the sum offered. Hampson, a witness on the part of the defendant in error, testified that the secretary "said the policy had been forfeited; there was no use in coming there; would not look at the money; would not look at the assessment; said the policy was forfeited, and the company would not pay it, and there was no use bothering anything about it." This interview was at the office of the company and with its principal officer. If this evidence is believed, there was a distinct declaration that the company would not pay the loss, by reason of the forfeiture of the policy. It was fairly within the province of the jury to say whether the declaration, "there was no use bothering anything about it," did not reasonably import that it was useless to make any proofs of loss. The company already had notice of the fire, the only remaining act was to make the formal proofs. A jury might well find that both parties understood the language used referred to proofs of loss. If the objection to pay was then put solely on the ground of forfeiture, and the defendant in error induced to make no formal proofs of loss, the company could not, afterwards, successfully plead the absence of such proof. The first and third assignments cover no error: Inland Ins. & Dep. Co. v. Stauffer, 9 Casey 397; Commonwealth Ins. Co. v. Sennett, 5 Wright 161; Coursin v. Pennsylvania Ins. Co., 10 Id. 323; Buckley v. Garrett, 11 Id. 204; Farmers' Ins. Co. v. Taylor, 23 P. F. Smith 343; State Ins. Co. of Missouri v. Todd, 2 Norris 272.

The policy was made and accepted, subject to the terms and conditions of the by-laws. The thirteenth declared "whenever an assessment shall have been made upon a premium-note, and the same is not paid within thirty days after notice * * * the policy of insurance given upon such note shall be null and void, and the directors shall retain such premium-notes, and collect thereon such sum or sums so assessed." It is well settled that although a condition be attached to a policy declaring it void, on a failure to pay an assessment on a premium-note within a specified time, yet the policy does not thereby become, ipso facto, void. The company...