Gould v. Dwelling-House Ins. Co

• Decision Date: 12 May 1890
• Docket Number: 2
• Citation: 134 Pa. 570,19 A. 793
• Parties: LAFAYETTE GOULD v. DWELLING-HOUSE INS. CO
• Court: Pennsylvania Supreme Court

19 A. 793

134 Pa. 570

LAFAYETTE GOULD v. DWELLING-HOUSE INS. CO

No. 2

Supreme Court of Pennsylvania

May 12, 1890

Argued March 17, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF BRADFORD COUNTY.

No. 2 July Term 1889, Sup. Ct.; court below, No. 219 September Term 1888, C.P.

On June 8, 1888, Lafayette Gould brought assumpsit against the Dwelling-house Insurance Company, of Boston, upon a policy of insurance against fire, issued by the defendant to the plaintiff. The defendant's plea was non-assumpsit.

At the trial on February 11, 1889, it was shown as follows:

In September, 1887, C. S. Russell was the agent of the defendant company at Towanda, Pennsylvania, under a written certificate of appointment, executed on behalf of the company by its president and secretary, in which the extent of his authority was thus defined: "with authority only to sign policies of insurance, and renewals of same, to consent to assignments and transfers of property covered by policies or renewals signed by him, and to collect and transmit premiums therefor. Said agent to be governed in all respects by the instructions to agents which have been, or may hereafter be issued by this company. . . ."

On September 10, 1887, Russell, on behalf of the defendant company, wrote and issued to the plaintiff a policy, bearing date that day, insuring against loss by fire, during a period of three years thereafter, the plaintiff's dwelling-house and certain articles of personal property therein, and his barns and certain personalty therein, and containing the following provisions:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if there is or shall be other prior, concurrent or subsequent insurance whether valid or void, on property covered in whole or in part by this policy; or, if the hazard be increased in any manner; or, if mechanics be employed in building, altering or repairing the within described premises except as above provided; or, if the interest of the insured be other than unconditional and sole ownership, free from all liens whatever; or, if the subject of insurance be a building on ground not owned by the insured in fee-simple; or, if the subject of insurance be personal property and be or become encumbered by chattel mortgage; or, if any change, other than by the death of an insured, take place in the interest title, or possession of the subject of insurance (except change of occupants without vacancy or other increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise; or, if this policy be assigned before a loss; . . . .

"In case of loss or damage under this policy, the insured shall give immediate notice thereof in writing to this company protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon; and within thirty days after the loss or damage by fire or lightning, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge of the insured as to the time and origin of the loss by fire or lightning; the interest of the insured and of all others in the property; the cash value of each item thereof, and the amount of loss thereon; all encumbrances thereon; the title to and encumbrances on the ground on which the property insured is situate; all other insurance, whether valid or not, covering any of said property; a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described, and the several parts thereof, were occupied at the time the loss or damage took place; . . . .

"The insured, as often as required, shall exhibit to any person designated by this company, all that remains of any property herein described, and submit to examinations under oath by any person named by this company, and subscribe the same. . . .

"In the event of disagreement as to the amount of loss, the same shall 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; . . . .

"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 proofs of the loss herein required have been received by this company at its home office in Boston, 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 unless the insured shall have fully complied with all the foregoing requirements, nor unless commenced within six months after the fire, or damage by lightning; . . . .

"The company may terminate this contract at any time by giving notice to that effect, and in such event it shall refund the unearned premium pro rata. . . .

"By the acceptance of this policy the insured covenants that the application herefor shall be and form a part hereof, and a warranty by the insured, and the company shall not be bound by any act or statement made to or by any agent unless inserted in this contract.

"This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto; and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

The plaintiff's dwelling and nearly all of its contents were destroyed by fire on March 10, 1888. On March 12, 1888, one V. S. Vincent, at the request of the plaintiff, wrote to Russell, notifying him of the fire. Mail communication having been interrupted in consequence of a severe storm, this letter was not received by Russell until March 15th, when he forwarded by mail to the company's home office, and also to its general agent, notice of the fact of loss upon blank forms provided for the purpose.

On April 3, 1888, the plaintiff sent to the company a paper, containing proofs of his loss, by registered letter received on April 6, 1888. This paper was not printed in a complete form in the paper-books, but it was impliedly stated in the paper-book of the appellant to contain nothing but a schedule of the items of loss, and the amount claimed for each item.

The proofs of loss being produced by the defendant upon notice, and identified by the plaintiff, testifying on his own behalf, the plaintiff's counsel offered them in evidence for the purpose of showing compliance by the plaintiff with the terms and requirements of the policy.

Mr. Williams: We object to the offer for the reason that it does not comply with the terms or conditions of the policy in scarcely a single particular.

Mr. Mercur: I propose to follow this by proof that the company never returned the proofs of loss to the plaintiff, and never objected to them at any time, until after the suit was brought; and never pointed out any defects in them, nor asked us to submit any other proofs of loss; so that if they were defective, the company has waived all imperfections. And I propose to follow this by proof that the adjuster came on, and that after making an examination of the loss he made an offer of compromise, without showing what that offer was.

Mr. Williams: We object to the introduction of the proofs of loss in evidence, for the reason that it does not comply with the conditions of the policy, as follows: It does not state the interest of the assured in the property lost; it does not state the encumbrances on the property insured, the title to, and encumbrances on the ground on which the property insured was situated; it does not state whether there was other insurance or not; it does not state whether there has been any changes in the title, use, occupation, location, possession, or exposures of said property, since issuing the policy; it does not state in any form how the fire occurred or originated; it does not state that the policy has been assigned or transferred to other parties, or that any other parties have any interest in it, all of which is required by the policy of insurance; and that the proofs of loss do not set forth that the plaintiff had the sole ownership, free from all encumbrances, of the property insured.

By the court: Objection overruled, and proofs of loss admitted in evidence, exception.

The plaintiff then testified as follows: Q. State if these proofs of...