Isaac v. Donegal & Conoy Mutual Fire Ins. Co.
| Decision Date | 21 June 1930 |
| Docket Number | 81 |
| Citation | 152 A. 95,301 Pa. 351 |
| Parties | Isaac et al. v. Donegal & Conoy Mutual Fire Ins. Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued May 27, 1930
Appeal, No. 81, March T., 1930, by defendant, from judgment of C.P. Somerset Co., Sept. T., 1929, No. 150, on verdict for plaintiff, in case of M. & A. Isaac and Samuel Philips v Donegal & Conoy Mutual Fire Insurance Co. Reversed.
Assumpsit on policy of fire insurance. Before BERKEY, P.J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $10,738.18, on which judgment was entered for $3,020.13. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record seriatim.
Judgment of the court below is reversed, and a venire facias de novo is awarded.
Douglass D. Storey, with him Budd B. Boose and Hause, Evans & Baker, for appellant. -- Appellant properly proved the authority of its adjuster to execute the appraisal agreement: Curran v. Ins. Co., 251 Pa. 420; Hileman v. Falck, 263 Pa. 351; Bunting v. Goldstein, 283 Pa. 356; Witmer v. Ins. Co., 68 Pa.Super. 12.
The appraisal agreement having been duly executed and an award thereunder having been actually made to the insureds, they were prima facie bound by that award: Gratz v. Ins. Co., 282 Pa. 224; Chauvin v. Ins. Co., 283 Pa. 397; McFarland v. Ins. Co., 134 Pa. 590; Red Cross Line v. Fruit Co., 264 U.S. 109; McGheehen v. Duffield, 5 Pa. 497; McCune v. Lytle, 197 Pa. 404.
Witness Jacob Friedman for appellant was qualified to express an opinion as to the amount of the loss and damage to the building and his exhibit 4 was admissible.
The averments in the statement of claim on which appellees relied were so sufficiently denied by the affidavit of defense that the trial court was not warranted in regarding them as admitted: Eizen v. Stecker, 295 Pa. 497; McKaraher v. Dowling, 90 Pa.Super. 32.
C. L. Shaver, with him H. G. Gress, for appellees. -- Evidence in support of the defense set up as new matter was inadmissible on the trial: Futer v. Snyder, 34 Lancaster L.R. 361.
The provisions of the Act of 25 April, 1927, P.L. 381, apply to an insurance policy containing a provision for an appraisal agreement: Bashford v. Land Co., 295 Pa. 560; Kaplan v. Bagrier, 12 D. & C. 693.
Appellant did not prove the authority of its adjuster to execute the appraisal agreement: Todd v. Ins. Co., 9 Pa. Superior Ct. 371; Wicks v. Dempsey, 86 Pa.Super. 275; Hileman v. Falck, 263 Pa. 351; Curran v. Ins. Co., 251 Pa. 420.
The court did not err in rejecting defendant's exhibit 4, being the estimate of its witness Jacob Friedman: Mumbower v. Weaver, 282 Pa. 605; Heller v. Fabel, 290 Pa. 43.
The affidavit of defense insufficiently denied the averments in the plaintiffs' statement and the trial court was warranted in regarding them as admitted: Fulton Farmers Assn. v. Bomberger, 262 Pa. 43; Phila. v. Schaefer, 269 Pa. 550; South Hills Trust Co. v. Baker, 278 Pa. 481; Boles v. Electric Co., 89 Pa. Superior 160; McKaraher v. Dowling, 90 Pa. Superior 32; Fidelity & Casualty Co. v. Gizynski, 93 Pa.Super. 152.
Horace Michener Schell, for Lumbermen's Insurance Co. et al., amicus curiae.
Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appellees instituted an action to recover loss due to the destruction by fire of a building, stock of goods, furniture and fixtures. The insurance policy contained the standard appraisal provision to determine the loss. From a judgment for the insured, the case comes to us mainly because of alleged trial errors.
The adjuster who acted on behalf of the insurer attempted to prove by his testimony his authority from the company to execute the appraisal agreement offered in defense. The insured objected to his evidence, and the court below refused to receive it, on the authority of Todd v. Quaker City Mutual Fire Ins. Co., 9 Pa. Superior Ct. 371, that the declarations were hearsay and inadmissible. The case relied on does not fit the instant case; there the attempt was to prove agency by statements of the agent over the objection of the company, and the court held this could not be done. In the case before us, the principal offers to prove the agent's authority by the testimony of the agent.
The rule excludes an agent's declarations to prove agency when offered by a third person, but authority may be shown by the agent's own testimony: 2 C.J. 939, section 694. The authority of an agent can always be proven by the agent himself; he is always a competent witness for his principal: Curran v. Nat. Life Ins. Co., 251 Pa. 420, 435; Hileman v. Falck, 263 Pa. 351, 354; Bunting v. Goldstein, 283 Pa. 356, 359. The witness may state the facts from which his right to act for his principal in a given matter may appear. He was directed by the insurance company to adjust the loss, and that embodied all necessary steps for that purpose. The letters offered in evidence, showing in themselves that they constituted the correspondence in relation to appellee's loss between the principal and agent, corroborated the testimony of the witness as to his agency, if that was necessary. They must, of course, be shown to be authentic letters of the company. The court erred in excluding them and in refusing to permit the agent to testify as to his authority.
The appraisal provision of the policy reads as follows: It required the appraisers to state separately the sound value and loss or damage to each item. The insurance covered a building, contents, stock of goods, office furniture, fixtures, and household furniture. The appraisal agreement, though stating that appellees "have sustained a loss by fire . . . on two-story, composition roof, brick building, occupied as general store and dwelling, . . . [and] a disagreement has arisen between the parties hereto, as to the amount of such loss," covered in fact all items of loss as mentioned above. It continues: "[The parties named] are hereby appointed appraisers, to appraise, in accordance with the terms and conditions of the policy [or policies], the sound value of said property and the amount of loss or damage . . . stating separately sound value and loss or damage to each item." This follows the terms of the policy as to appraisal. The award did not follow the terms of the submission; only one item was appraised, the building.
Appellant offered the award as final and conclusive as to this item. The court below refused to receive the award because it had not been shown that the agreement on which the award was based had been made by the adjuster under competent authority. Had the court admitted the testimony as to the agent's authority, the agreement and the award could have been received in evidence.
Both were further objected to as not being properly pleaded under the Practice Act of May 14, 1915, P.L. 483, as amended by the Act of April 22, 1929, P.L. 627. This objection is unsound. The affidavit set forth both documents and their purpose as a defense, and appellees had full notice of its contents. That the words "new matter" did not precede these allegations, and that there was no endorsement on the affidavit of defense of a requirement that plaintiff should reply thereto, does not operate to exclude proof of the defense averred. The Act of 1929, while providing, in a number of respects, for such exclusion where there is a failure to comply with its terms, does not do so as regards the two matters above set forth. If plaintiffs were not satisfied with the affidavit as a pleading, because of these omissions, their remedy was a motion to strike it off, as provided by section 21 of the Act of 1915, P.L. 487.
Appellant now contends the award was final as to the entire loss. The dispute was...
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