Higgs v. New York Fire Ins. Co.

• Decision Date: 13 July 1954
• Citation: 176 Pa.Super. 310,106 A.2d 860
• Parties: HIGGS et al. v. NEW YORK FIRE INS. CO.
• Court: Pennsylvania Superior Court

106 A.2d 860

176 Pa.Super. 310

HIGGS et al. v. NEW YORK FIRE INS. CO.

Superior Court of Pennsylvania.

July 13, 1954

Action in assumpsit by insured, for loss under fire insurance policy, wherein insurer filed amended answer and new matter. From an order of Municipal Court, Philadelphia County, as of May Term, 1953, No. 110, Francis F. Burch, J., sustaining preliminary objections to new matter, defendant appealed. The Superior Court, No. 121, October Term, 1953, Gunther, J held that defense that insured's loss claim was wilfully exaggerated with intent to cheat and defraud insurer was properly pleaded under new matter.

Order reversed.

Defense which is based upon alleged fraud in grossly overrating loss is sufficient pleading to raise issue and reach trial in action on fire policy.

Horace Michener Schell, Philadelphia, for appellant.

Samuel Melnick, Philadelphia, for appellees.

Before HIRT, Acting P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, Jj.

GUNTHER Judge.

This is an action in assumpsit to recover for a loss under a fire insurance policy. The defendant filed an amended answer and new matter. Preliminary objections to the new matter were sustained by the court below, the case was declared at issue on complaint and answer, and defendant has appealed.

The plaintiffs have moved to quash the appeal on the ground that the order of the court below is interlocutory. There is no merit to such contention. This order is final because it has removed defendant's new matter from the case. At the trial defendant would thereby be prevented from presenting evidence of fraud, which is the subject of the new matter. The answer contains no allegations of fraud. Cf. Kinsey Distilling Corp. v. Pennsylvania R. R. Co., 166 Pa.Super. 466, 71 A.2d 802; Broido v. Kinneman, 375 Pa. 568, 101 A.2d 647.

The new matter in question alleges that plaintiff's loss claim was wilfully exaggerated with intent to cheat and defraud the defendant; that the insurance policy provides for voiding when the insured wilfully conceals or misrepresents a material fact; and that the proof of loss alleged $2,484,22 damages, the complaint alleged $1,800 damages, but the actual loss was no more than $392.40. The defendant is correct in maintaining that the defense of fraud was properly pleaded under new matter. Rule 1030 of the Rules of Civil Procedure, 12 P.S.Appendix provides that fraud is an affirmative defense which shall be so pleaded. As stated in Saxe v. Feinstein, 366 Pa. 473, 77 A.2d 419, the affirmative defenses listed in Rule 1030 are in the nature of confession and avoidance. This defendant, in its answer, has confessed or admitted the existence of the insurance...