Fritz v. British America Assur. Co.

• Decision Date: 07 March 1904
• Docket Number: 32
• Citation: Fritz v. British America Assur. Co., 208 Pa. 268, 57 A. 573 (Pa. 1904)
• Parties: Fritz, Appellant, v. British America Assurance Company
• Court: Pennsylvania Supreme Court

57 A. 573

208 Pa. 268

Fritz, Appellant, v. British America Assurance Company

No. 32

Supreme Court of Pennsylvania

March 7, 1904

Argued January 7, 1904

Appeal, No. 32, Jan. T., 1903, by plaintiff, from order of C.P. No. 2, Phila. Co., Dec. T., 1899, No. 654, refusing to take off nonsuit in case of A.P. Fritz v. British America Assurance Company. Reversed.

Assumpsit on a policy of fire insurance. Before WILTBANK, J.

The facts are stated in the opinion of the Supreme Court.

Error assigned was order refusing to take off nonsuit.

The assignments of error are sustained and the judgment is reversed with a procedendo.

W Horace Hepburn, for appellant. -- The act of the appellee requesting the appointment of appraisers to appraise the loss is an affirmative act on its part, and inasmuch as the appraisement so requested was not completed within the time prescribed in which suit is to be brought by the terms of the policy without fault of appellant, the law implies a waiver of the limitation in the policy: Austen v. Niagara Fire Ins. Co., 16 A.D. 86 (45 N.Y.S. 106); Harrison v Hartford Fire Ins. Co., 80 N.W. 309; Barber v. F. & M. Ins. Co., 16 W. Virginia, 658; Atlas Mut. Ins. Co. v. Downing, 12 Pa.Super. 305; Ames v. N.Y. Union Ins. Co., 14 N.Y. 253; Steel v. Phoenix Ins. Co., 154 U.S. 518 (14 S.Ct. Repr. 1153); Friezen v. Allemania Fire Ins. Co., 30 Fed. Repr. 369; Boston Marine Ins. Co. v. Scales, 49 S.W. Repr. 743; McConnell v. Iowa Mutual Aid Assn., 79 Iowa 757 (43 N.W. 188); Matt v. Iowa Mutual Aid Assn., 81 Iowa 135 (46 N.W. 857); Case v. Sun Ins. Co., 23 Pac. Repr. 534; Thompson v. Phoenix Ins. Co., 136 U.S. 287 (10 S.Ct. Repr. 1019); McMaster v. New York Life Ins. Co., 183 U.S. 25 (22 S.Ct. Repr. 10).

The appellant relies upon the broad principle that there was a waiver or estoppel in law as a result of the fixed facts proven in this case.

That the facts proven would constitute such evidence of waiver as would entitle them to be submitted to a jury, would seem to be settled by the following authorities: May on Insurance, sec. 488; Bonnert v. Penna. Insurance Company, 129 Pa. 558; Commercial Union Assurance Company v. Hocking, 115 Pa. 407; Coursin v. Penn. Ins. Co., 46 Pa. 323.

The plaintiff having submitted to the request of the defendant for an appraisement by appraisers, and having used every effort to have the appraisement completed and the defendant by its conduct acquiescing in the abandonment of the appraisement by the appraisers, had a right to bring his suit, and if there was any doubt about the facts, it was a question for the jury: Harrison v. Hartford Ins. Co., 80 N.W. 309; Hamilton v. Liverpool, London & Globe Ins. Co., 136 U.S. 242 (10 S.Ct. Repr. 945).

Henry R. Edmunds, for appellee.

Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT, POTTER and THOMPSON, JJ.

OPINION

MR. JUSTICE MESTREZAT:

This is an action of assumpsit on a fire insurance policy, issued by the appellee company on certain personal property owned by the appellant and in the building occupied as a file works at 20th street and Allegheny avenue, in the city of Philadelphia. The policy is dated April 6, 1897, and is in the sum of $2,500. At the time this policy was issued to the appellant, he procured five other policies from various companies on the same property, aggregating $17,500, making a total insurance on the property of $20,000. The property was partially destroyed by fire on September 20, 1897. The several companies were duly notified of the fire by the appellant, and, on September 27, 1897, one Thomas T. Nelson was appointed by the appellee company as adjuster to adjust the appellant's loss. It is claimed by the appellant and he introduced evidence to show that proofs of loss were delivered to the appellee within sixty days of the fire as required by the policy, and further, that on November 3, 1897, he delivered to Nelson, as agent for the appellee, a detailed statement of his loss showing the sound value and damage value of every article of property alleged to be damaged. After the appointment of the adjuster, negotiations were entered into between the parties for a settlement of the appellant's claim. On December 16, 1897, the appellee's attorney wrote to the attorney of the appellant suggesting that "an appraisement should be made as provided by the policy." The negotiations for a settlement were, however, continued until April 5, 1898, when, in pursuance of the appellee's suggestion, two appraisers were selected by the parties in conformity with the provisions of the policy on which this suit was brought. The other insurance companies having risks on the same property joined the appellee in selecting an appraiser. An appraisal agreement, appointing the appraisers, was signed by the parties, which, after reciting that the parties had failed to agree as to the amount of loss and damage by fire sustained by the appellant authorized the appraisers to "appraise and estimate the actual cash value of, and the loss and damage by fire to, the property described in said policies." This agreement was signed for the appellant by his attorney, and for the appellee and some other insurance companies by Thomas T. Nelson, as agent and for the other interested companies by their respective agents. The two appraisers appointed an umpire and, having been duly qualified on April 15, 1898, entered upon the discharge of their duties. They, however, failed to agree upon an award and no award in writing by any two of the three appointees was ever made or reported to the parties as required by the policy. On January 18, 1900, alleged by plaintiff to be sixty days after the appraisement had been abandoned, this action was brought on the policy issued by the appellee.

The policy provides, inter alia, that the "ascertainment or estimate (of the loss) shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and the amount of the loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proofs of loss have been received by this company in accordance with the terms of this policy." The policy also contains the following provisions:

"In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss; the parties thereto shall pay the appraiser respectively selected by them and shall bear equally the expenses of the appraisal and umpire.

"This company shall not be held to have waived any provision or condition of this policy or any forfeiture thereof by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required.

"No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire."

On the trial of the cause in the court below, the appellee company set up among other defenses as a bar to recovery that the action had not been brought within twelve months after the fire, as required by the policy. The fire occurred on September 20, 1897 and this action was not instituted until January 18, 1900, and hence was not "commenced within twelve months next after the fire," as required by the contract of insurance. The appellant contends, however, that under the facts of the case as disclosed by the evidence, the appellee had waived its...