Mills v. Pennsylvania Mut. Live Stock Ins. Co.

• Decision Date: 15 July 1914
• Docket Number: 22-1914
• Citation: 57 Pa.Super. 483
• Parties: Mills v. Pennsylvania Mutual Live Stock Insurance Company, Appellant
• Court: Pennsylvania Superior Court

57 Pa.Super. 483

Mills v. Pennsylvania Mutual Live Stock Insurance Company, Appellant

No. 22-1914

Superior Court of Pennsylvania

July 15, 1914

Argued April 13, 1914 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Erie Co.-1911, No. 158, on verdict for plaintiff in case of S. Mills v. Pennsylvania Mutual Live Stock Insurance Company.

Appeal from judgment of justice of the peace.

Assumpsit on a policy of live stock insurance. Before Walling, P. J.

At the trial it appeared that the plaintiff received from the defendant on April 22, 1910, a policy dated the same day, on a horse. The plaintiff not being certain whether he wanted to keep the horse, retained the policy conditionally, without paying the premium. On July 12, 1910, he sent the amount of the premium to the treasurer of the company, and the same was accepted. On July 22, the horse died, and the plaintiff immediately notified the company to that effect. The company at once sent its surgeon to make a post-mortem. On September 17, 1910, the plaintiff was notified that the company did not regard itself as liable for the loss, and the premium was returned to him. This he refused to accept, and brought suit.

The court charged in part as follows:

The application for the policy provides as follows: " And I, (meaning Mr. Mills) agree that said Company shall not be held liable for the death of any animal occurring from castration, nor any animal under six months old, nor for loss occurring through negligence or carelessness, nor for insurance obtained upon diseased live stock or on stock upon which fictitious value has been placed, nor for the death of any animal which is caused by authority or direction of any State or Government officer, or other officer, or any person claiming to act under or by virtue of any law, and the insurance desired shall not be in force until accepted by the Home Office, and the policy issued thereon. And I further agree that said insurance shall be null and void and so remain, if the note given for the premium on said insurance shall not be paid at maturity, or if no note is given, the premium remaining unpaid for more than thirty days after date of policy, and in case of loss under a policy issued on this Application, that the note given for the premium on said insurance shall immediately become due and payable, and shall be deducted from the amount of said loss, etc." [You see by that if the premium was not paid within thirty days the policy becomes null and void and so remains. Now thirty days from the date of the policy -- this premium was not paid within thirty days from the date of the policy -- therefore the policy became by its terms null and void. On July 12, Mr. Mills, the plaintiff, came to Erie and paid this premium to Mr. George W. Evans, secretary and treasurer of the defendant company, and Mr. Evans accepted the premium and the money was retained by the company until I believe September 19, 1910, when the company sent a check for the premium back to the plaintiff and the plaintiff returned it to the defendant company. The defendant did not offer to return the premium until September 19, that is, the defendant kept the premium for something over two months. I believe that the receipt of the premium by the company and its retention for that length of time would be facts justifying the jury in finding that there was a waiver on behalf of the company as to the payment within thirty days. The company by accepting the money after the thirty days I believed waived -- I believe you would have a right to find that that constituted a waiver; that by such acceptance and retention of the premium the policy became in force. The company was not bound to insist upon payment within thirty days, although the policy was void until paid; but the payment and acceptance and retention of the premium by the company would justify you in finding that the company had waived that clause in the policy. And if you so find, then the policy would be in force at the time this mare died on July 22, 1910.] Mr. Evans says the payment he thinks was made on the thirteenth; I believe that the receipt perhaps shows the twelfth. It is not very material as to that. If you find that the policy was in force, then the next question is: " Did the plaintiff give notice of the loss?" The policy requires notice to be given immediately: it provides like this: " In case of loss under this policy the assured shall give notice thereof in writing to the company within 60 days, at its Home office, giving number of policy, shall complete or cause to be completed proofs of such loss as furnished by the company." There was no notice in writing given; that part of the policy has never been complied with by the plaintiff. But the plaintiff did give immediate notice over the telephone to the defendant company on the same morning the horse was found dead, and the president and general manager of the company took a veterinary surgeon and immediately went up and had a post-mortem held upon this dead animal, and before the expiration of the sixty days the company wrote the plaintiff denying all liability under the policy. In our opinion under those facts the company cannot now insist upon the defense that no written proofs of loss were submitted, especially as no such defense is made in the affidavit of defense. [We instruct you that so far as proofs of loss were concerned that the plaintiff is entitled to recover. Having given immediate notice, the defendant having acted upon that and come there and taken possession of the horse so far as to hold a post-mortem and then declined the loss absolutely in less than sixty days, we think that would excuse the plaintiff from furnishing any written proofs of loss.]

Verdict and judgment for plaintiff for $ 165.37. Defendant appealed.

Errors assigned among others were refusal of binding instructions for defendant, and above instructions, quoting them.

J. Orin Wait, for appellant. -- There was concealment of a material fact: Smith v. N.W. Mut. Life Ins. Co., 196 Pa. 314; Mitchell v. Lycoming Mut. Ins. Co., 51 Pa. 402.

The acceptance of the premium by the company on July 12, was an acknowledgment of a willingness on the part of the company to accept the risk, from that date, provided the animals were in good health and the representations and warranties contained in the application were true at that time, and not otherwise. Filing of the proof of loss was a condition precedent to right to bring suit: Xander v. Com., 102 Pa. 434; Kittanning Boro. v. Kittanning, etc., Nat. Gas Co., 26 Pa.Super. 355.

Charles A. Mertens, for appellee. -- If the company with knowledge of facts giving it a right to avoid the policy accepts a premium, it thereby waives the right to forfeit the policy: Lantz v. Vermont Life Ins. Co., 139 Pa. 546; Sill v. Mut. Res. Fund L.I. Co., 159 Pa. 625.

The notice was sufficient: Beech v. Live Stock Ins Assn....