Niagara Fire Ins. Co. v. Miller

• Decision Date: 21 May 1888
• Docket Number: 432
• Parties: THE NIAGARA FIRE INS. CO. v. FRANK MILLER
• Court: Pennsylvania Supreme Court

14 A. 385

120 Pa. 504

THE NIAGARA FIRE INS. CO. v. FRANK MILLER

No. 432

Supreme Court of Pennsylvania

May 21, 1888

Argued May 10, 1888

ERROR TO THE COURT OF COMMON PLEAS OF BEDFORD COUNTY.

No. 432 January Term 1888, Sup. Ct.; court below, No. 83 April Term 1887, C.P.

On February 28, 1887, an action was brought by Frank Miller against The Niagara Fire Insurance Co., of New York, to recover upon a policy of insurance dated January 21, 1886 for one year, for $2,100 upon a dwelling and $400 upon the personal property therein contained. The narr was in assumpsit. The plea was non assumpsit, payment with leave etc., with the following notice of special matter to be offered in evidence by the defendant on the trial of the case:

3. That plaintiff did not comply with the first clause of his policy under the title, "Warranty of the Insured." He omitted to state many things material to the risk. He represented that the judgments and liens against him did not exceed $600, when in truth and in fact they exceeded $1,500. His personal property was seized and taken in execution and in the custody of the sheriff. Had these facts been made known to defendant no policy would have issued; other liens were entered against plaintiff, and he did not make this known to defendant as he was required to do by his policy.

4. Plaintiff did not comply with any of the terms, provisions and conditions of his policy under the head and title of "Proceedings in Case of Loss." No statement was made to the New York office. No appraisement completed before suit commenced. No suit commenced within the time specified in the policy of insurance.

5. Defendant will insist that plaintiff shall show full compliance with all the stipulations in his policy under this head, and generally that he shall be held to strict proof of the performance of all of his covenants, agreements, and stipulations as stated and set forth in his policy of insurance.

At the trial on March 27, 1888, the policy was found to contain the following provisions:

WARRANTY OF THE INSURED.

The assured by the acceptance of this policy hereby warrants that any application, survey, plan, statement, or description connected with procuring this insurance, or contained in or referred to in this policy, is true and shall be a part of this policy; that the assured has not overvalued the property herein described nor omitted to state to this company information material to risk. And this company shall not be bound under this policy by any act or statement made to us by any agent or other person which is not contained in this policy or in any written paper above mentioned.

PROCEEDINGS IN CASE OF LOSS.

If the loss sustained be upon a building, fixtures, or machinery the assured shall, if required, furnish duly verified plans and specifications of such property destroyed or damaged.

It is hereby expressly provided that no suit or action against this company for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements, nor unless such suit or action shall be commenced within twelve months next after the fire shall have occurred.

The facts appearing from the evidence are fully indicated in the charge to the jury, BAER, P.J.:

The plaintiff in this case, on the 21st of January, 1886, procured from the defendant company, a policy of insurance on his house at Hyndman, and personal goods. The policy promises to pay, in case of loss, such an amount, not exceeding the sum insured, and not exceeding what it would cost to repair or replace the destroyed property, estimated at a cash value and deducting a suitable amount for depreciation. The house was insured at $2,100, and the household goods at $400. This policy was sent by mail the next day or soon after. The premium was paid at a later day, but was accepted by the company, and so it is the same as if paid at once. The insured house burned down on March 2, 1886, and the loss was a total loss. The personal property also burned, but not all of it. The insurance on the personal property was $400; and, though the goods burned were alleged to be worth $490, still $400 is all that can be obtained if the plaintiff is entitled under the evidence to recover.

The terms of the contract require certain notice. Preliminary notice was given, and proofs of loss were made and sent. It seems the company desired a more formal and specific statement which, it seems, was also made. The plaintiff having established by proof the insurance, and having made proof of loss by fire of the house and the personal property, and having given due notice of the fire with proofs of loss, is entitled to recover the damages sustained by the fire according to the terms of the policy, on proof of the cash value of the property destroyed, less a suitable amount allowed for depreciation; unless you find that the defendant company has by evidence in the case shown that for some reason the plaintiff is not entitled to recover.

The defence set up is:

1. That the plaintiff, at the time of applying for insurance, omitted to state matters that were material to the risk, saying that judgments and liens against him did not exceed $600, whereas they exceeded $1,500.

2. That the plaintiff did not make known the fact that the sheriff had a levy on his household goods at the time.

3. That the plaintiff has not complied with the terms and conditions of his policy under the head of "Proceedings in Case of Loss."

They called Mr. Moore as witness for the defendant company, who is also the agent who placed the risk, and he says he inquired of Miller, what, if any, liens existed, and that Miller said $500 or $600, and that he said nothing about the sheriff's having a levy on his personal goods. The manager took an affidavit from the plaintiff before Squire Burkett, and in that Mr. Miller replies to interrogatories that were propounded by the manager, that he told Moore at the time that the judgments against him were $500 or $600, and that he had no recollection whether he told him the sheriff had a levy on his goods. The records produced in evidence show that the sheriff had a levy on his personal property, but the proof shows that it was still in the actual possession of Miller; and the records also show that the judgments then against him were about $1,500.

[Assuming for the purpose of the statement that, as the defendant claims by the terms of the warranty, this state of facts created a warranty, and that the breach of it made the policy void according to its terms, we still have to say to you that if the defendant, having knowledge of the breach, had time to make it void and did not do so, it is not void; for the law is that it is voidable at the will and pleasure of the company, and having not done so, the policy is valid. Whether or not such opportunity was waived is a question of fact for the jury.]

But, before answering the question of waiver, you must first find whether there was a breach. First, what were the facts? Was there, in point of fact, a representation of some facts and a concealment of others that were material to the risk; that Moore claims would be material to the risk?

Defendant argued that Mr. Moore is corroborated by Mr. Tenney, the manager, by Burkett, and by the affidavit. Is this so? The jury will remember that Moore said no one else was present. Miller also says the same. What Moore says, Miller says he said, at the time of the taking of the insurance. It is the affidavit of Miller that is called on as corroboration. Burkett merely swore him and took it down. If a court house full of people would say they saw and heard that, it would not make it stronger: it would still be the oath of Miller.

Moore's statement in this case, the plaintiff undertakes to answer: -- First, he swears that he told Moore that he knew of $500 or $600 of judgments, but that there might be more and he not know; that Moore should inquire of Prothonotary Emons; that he told him his personal property was levied on; that his object was to get insurance to procure a loan by mortgage to pay his debts. Having his attention called to the affidavit, Miller says that he was in great trouble; that it was but a few days after the fire, and that he hardly knew what he was about. The affidavit was dated on the 5th of March, and the fire was on the 2d, yet in that affidavit the fire was stated to have been on the 1st. He says that he answered questions propounded by the manager, and that what he said about judgments was true; but that he was not asked if he told Moore anything more; that if he had been asked he would have told it. From this plaintiff's counsel argue that there is no inconsistency between Miller's affidavit and his oath on the stand. It is alleged that there was no cross-examination, you have been in court long enough to know how that is done, and only the answers of Miller written down, and, as there was no cross-examination Moore is not thereby corroborated.

We say to you that this is a question of fact for you to decide between these witnesses. Tenney says Miller was cool and collected; the "Squire says he took the testimony down, and Miller also says the testimony was written by the 'Squire. You must determine what were the facts at the time of taking this testimony. If the facts were as Mr. Moore testified, then there was a warranty and breach; but if you find the facts as Miller testified, then there was no warranty and breach, and this would be the end of the case.

If there was a breach of warranty, than we go further. We inquire then whether or not the defendant waived a right by allowing the matter to run on from time to time. A waiver need not be...