Pennsylvania Fire Ins. Co. v. Dougherty
| Decision Date | 16 April 1883 |
| Citation | 102 Pa. 568 |
| Parties | Pennsylvania Fire Insurance Company <I>versus</I> Dougherty. |
| Court | Pennsylvania Supreme Court |
Before MERCUR, C. J., GORDON, PAXSON TRUNKEY, STERRETT, GREEN and CLARK, JJ.
ERROR to the Court of Common Pleas of Lehigh county: Of January term, 1883, No. 186.
Edward Harvey, for the plaintiff in error.—There was no sufficient evidence to submit the question of implied waiver to a jury and the court should have so charged: Angier v. Eaton Co., 11 W. N. C. 146; Beatty v. Lycoming Ins. Co., 16 P. F. S. 17; Diehl v. Ins. Co., 8 P. F. S. 452. But even if there had been evidence, it was improperly admitted under the pleadings, which distinctly averred that proofs of loss had been furnished. A material variance between the allegata and probata is fatal to plaintiff's claim. By the terms of the policy a formal proof of loss under oath was made a condition precedent to a right of action. That condition could either have been performed or its performance waived. If the narr. alleges performance it should have been proved. Waiver of performance is no proof of the affirmative averment of performance. Hence we objected to the evidence when it was offered, and asked the court in two points to direct a verdict for defendant because of this variance: Cunningham v. Shaw, 7 Barr 401; Couch v. Ingersoll, 2 Pick. 292; Colt v. Miller, 10 Cush. 49; Palmer v. Sawyer, 114 Mass. 2; Hapgood v. Shaw, 105 Id. 276; Murdock v. Caldwell, 10 Allen 299.
The title not being in Mrs. Dougherty's name, as she warranted it to be, and these facts being shown by the uncontradicted testimony, the court should have affirmed our points, and instructed the jury to render a verdict for defendants.
John D. Stiles & Son and R. E. Wright & Son, for defendant in error.—The loss being total and that fact being known to the company, no formal proofs were necessary. But even if they were, the act of the insurer in denying his liability, and refusing to pay, was a waiver of the technical proofs of loss which are at best merely conditions precedent to the institution of the suit and not to the liability of the company: Ireland Insurance Company v. Stauffer, 9 Casey 404; Commonwealth Ins. Co. v. Sennett, 5 Wright 164; Franklin Fire Ins. Co. v. Updegraff, 7 Id. 350; Flanders on Insurance 541, 542; Slate Ins. Co. v. Modd, 2 Norris 272; Farmers' Ins. Co. v. Moyer, 10 W. N. C. 129; Farmers' & Mech. Ins. Co. v. Meeks, 10 W. N. C. 313; Farmers' Ins. Co. v. Ensminger, 12 W. N. C. 9.
The cause was tried solely on its merits, irrespective of the allegations of the narr. No technical objection, like that of variance, will defeat the result. Courts, including those of last resort, are clothed with unlimited power to amend, and if the variance complained of in this cause be material, we ask that the narr. be so amended as to make the pleading conform to the verdict. The power of this court to do this, to meet the ends of justice is supported by numerous authorities: Ins. Co. Meeks, 10 W. N. C. 307; Same v. Moyer, Id. 129; Slate Ins. Co. v. Todd, 2 Norris 272; Bank of U. S. v. Lyman, 1 Blatchf. 297; Sherman v. Clark, 3 McLean 91; Cobb v. West, 4 Duer 38.
The learned counsel for the plaintiff in error classifies and argues his ten assignments of error under three heads:- First, that there was no evidence of a waiver on part of the insurance company, of the proofs of loss. Second, that under the pleadings, proof of an implied waiver was not admissible. Third, that the assured had no such title to the insured premises as that warranted in her application.
Adopting the order thus prescribed, we make answer to these assignments as follows: First, the waiver of the proofs of loss required in a policy, may be inferred by any act of the insurer evincing a recognition of liability or a denial of obligation exclusively for other reasons: Inland Ins. Co. v. Stauffer, 9 Ca. 397;...
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