Polizzi v. Commercial Fire Ins. Co.
| Decision Date | 08 January 1917 |
| Docket Number | 171 |
| Citation | 99 A. 907,255 Pa. 297 |
| Parties | Polizzi v. Commercial Fire Insurance Company, Appellant |
| Court | Pennsylvania Supreme Court |
Argued September 25, 1916
Appeal, No. 171, Oct. T., 1916, by defendant, from judgment of C.P. Armstrong Co., Sept. T., 1914, No. 170, on verdict for plaintiff, in case of Carmello Polizzi v. Commercial Fire Insurance Company, a corporation of the District of Columbia. Reversed.
Assumpsit on a fire insurance policy. Before KING, P.J.
The opinion of the Supreme Court states the facts.
Verdict for plaintiff for $3,260 and judgment thereon. Defendant appealed.
Errors assigned were rulings on evidence and instructions to the jury.
The judgment is reversed with a venire facias do novo.
S. S Mehard, of Mehard, Scully & Mehard, with him R. L. Ralston for appellant. -- The proof of loss was not admissible in evidence to show the extent or amount of the loss: Commonwealth Insurance Co. v. Sennett, et al., 41 Pa. 161; Kittanning Ins. Co. v. O'Neill, 110 Pa. 548; People's Mut. Accident Assn. of Pittsburgh v. Smith, 126 Pa. 317; Cole Bros. v. Manchester Fire Assurance Co., 188 Pa. 345; Sutton v. American Fire Ins. Co., 188 Pa. 380; Cummins v. German American Ins. Co., 192 Pa. 359; Rosenberg v. Fireman Fund Ins. Co., 209 Pa. 336.
There was not sufficient evidence to submit to the jury of an adjustment of the loss.
It was error to permit the plaintiff to refresh his memory from copies of bills for goods purchased by him and to admit such bills in evidence: Farmers and Mechanics Bank v. Boraef, 1 Rawle 152; Meighen v. Bank, 25 Pa. 288; Selover, to use of Barrows' Admr., v. Rexford's Exec., 52 Pa. 308.
The plaintiff having failed to keep a set of books in which purchases, sales and shipments were recorded was not entitled to recover: Liverpool & London & Globe Ins. Co. v. Kearney, 180 U.S. 132; American Cent. Ins. Co. v. Ware, et al., 46 S.W. Repr. 129; Connecticut Fire Ins. Co. v. Clark, 24 Ohio Cir. Ct. R. 33; Phoenix Ins. Co. of Hartford v. Padgitt, et al., 42 S.W. Repr. 800; Pelican Ins. Co. v. Wilkerson, 13 S.W. Repr. 1103; Everett-Ridley-Ragan Co. v. Traders' Ins. Co. of Chicago, Ill., 48 S.E. Repr. 918; German Ins. Co. v. John W. Bates & Co., 67 Ill.App. 370; Malin v. Mercantile Town Mut. Ins. Co., 105 Mo.App. 625; Western Assurance Co. of Toronto v. McGlathery, 115 Ala. 213; German Ins. Co. of Freeport, Ill., v. John W. Bates & Co., 60 Ill.App. 43; Farmers Fire Ins. Co. v. John W. Bates & Co., 65 Ill.App. 37; Niagara Fire Ins. Co. v. Forehand, 169 Ill. 626; Keet-Rountree Dry Goods Co. v. Mercantile Town Mut. Ins. Co., 100 Mo.App. 504; Forehand v. Niagara Ins. Co., 58 Ill.App. 161; Farmers Fire Ins. Co. v. John W. Bates & Co., 60 Ill.App. 39; AEtna Ins. Co. v. Johnson, 56 S.E. Repr. 643; Coggins v. AEtna Ins. Co., 56 S.E. Repr. 506; Gish, Brook & Co. v. Ins. Co. of No. Amer., 16 Okla. 59; Phoenix Ins. Co. v. Bourgeois, 105 Miss. 698; Rives v. Philadelphia Fire Assn., 77 S.W. Repr. 424; Langan v. Royal Ins. Co. of Liverpool, 162 Pa. 357; Seibel v. Lebanon Mutual Ins. Co., 197 Pa. 106.
H. A. Heilman, with him H. C. Golden and C. S. Hulings, for appellee. -- The bills were properly admitted in evidence.
There was ample evidence of an adjustment of the loss made between plaintiff and defendant's agent.
The iron safe clause has no application under the facts of this case: Bayless v. Mercantile Town Mut. Ins. Co., 80 S.W. Repr. 289; Continental Ins. Co. of N.Y. v. Waugh & Son, 60 Neb. 348; Bush v. Hartford Fire Ins. Co., 222 Pa. 419; Hanick v. Leader, 243 Pa. 372; Bingell v. Royal Ins. Co., Ltd., 240 Pa. 412; Weisberger v. Western Reserve Ins. Co. of Ohio, 250 Pa. 155.
Before BROWN, C.J., MESTREZAT, POTTER, STEWART, MOSCHZISKER, FRAZER and WALLING, JJ.
November 13, 1913, the plaintiff, a country storekeeper, procured from the defendant company a policy of fire insurance on his stock of merchandise. On the night of December 2, 1913, the building occupied by the plaintiff, and its contents, were destroyed by fire; he was upon the premises at the time, but professed entire ignorance as to the origin of the fire. On December 19, 1913, a Mr. Zieg, an insurance adjuster employed by the plaintiff, met with a Mr. Hepler, an agent of the defendant company, and discussed the subject of the loss. January 23, 1914, plaintiff submitted his written claim or proof of loss, upon a form furnished by the insurance company, to which he attached another paper entitled, "Statement of Loss," containing certain gross items, with accompanying figures, showing a total loss of $3,324.32; near the head of this latter paper these words appear: "As agreed in detail between assured and adjuster." February 14, 1914, a letter signed, "A. L. Hepler, Agent," was sent to the plaintiff, notifying him to produce his books, etc., for inspection. In pursuance of this notice, on February 24, 1914, a meeting was held at the office of the defendant company's attorney in Pittsburgh, at which time the plaintiff produced certain books and papers. During the course of this meeting Mr. Zieg, representing the plaintiff, stated, "Mr. Hepler and I agreed upon the measure of damages on the 19th of December, 1913, at $3,324.32, made up as follows," after which, on the stenographer's notes of the minutes of this meeting, appear several gross items, totaling the amount already stated. April 14, 1914, the secretary of the insurance company sent a letter to the plaintiff notifying him that, on investigation, it declined to pay his alleged loss, upon the grounds, inter alia, (1) that the cash values of the various items involved therein were incorrectly stated, (2) that he had not conformed to "the requirements of the policy as to keeping a set of books which would clearly and plainly present a complete record of the business transacted." August 18, 1914, the plaintiff sued and recovered a verdict for, approximately, the full amount of his claim; judgment was entered accordingly, and the defendant has appealed.
The numerous assignments of error raise three principal questions, which appellant correctly summarizes thus: (1) "Did the court err in admittance of evidence?" (2) "Was there evidence sufficient to submit to the jury, either as to an adjustment of loss, or as to amount of loss?" (3) "Was the requirement [of the policy] as to keeping books of purchases and sales a condition of recovery?"
The plaintiff, who was the only witness to the value of the property destroyed, produced what he testified were copies of bills which had been rendered to him by various persons from whom he had purchased goods prior to the fire, and claimed that all the articles mentioned therein were in his store at the time of its destruction, except a comparatively small quantity of merchandise previously removed or sold by him. He stated the original bills had been lost, but that Mr. Zieg, the insurance adjuster, had secured duplicates for him. While admitting he could neither read nor write English, the plaintiff said he recognized the various bills by their size and color; whereupon he was permitted to refresh his recollection therefrom, as to the dates, amounts and values of certain of his purchases; moreover, the duplicate bills themselves were admitted in evidence: all this was harmful error. The testimony shows that, in most part, the plaintiff was incapable of stating the amounts of his purchases or the values of the goods in the store on the night of the fire, without the aid of this incompetent documentary evidence. Under these circumstances, wherever he was unable to enumerate the articles on hand, with their respective values, if other competent proof was not available, he should have taken the testimony of those from whom he purchased the goods; in this way he could have proved his loss with reasonable precision, which is all that is required in such cases.
As to the alleged adjustment by Mr. Hepler, there is nothing in the testimony to prove that this man had authority to agree upon a figure the defendant would pay; nor, in fact, is there evidence sufficient to show that he undertook so to do. True Mr. Zieg, although frequently warned that he should not, insisted upon giving his conclusion that Mr. Hepler had acquiesced in the figures as written down by the former; but nowhere in his testimony does this witness relate any facts concerning the utterances of Mr. Hepler which would justify an inference or conclusion that the latter had contracted on behalf of the defendant company for an actual adjustment of the loss. Again, neither the statement of Mr. Zieg (at the conference in relation to the loss, held February 24, 1914), to the effect that "Mr. Hepler and I agreed upon the measure of damages," etc., nor the memorandum attached to the formal proofs of loss, in these words, "as agreed in detail between assured and adjuster," was sufficiently clear, comprehensive or specific to put the insurance company on notice that the plaintiff claimed, as a matter of fact, that the amount of loss had been definitely adjusted or agreed to by Mr....
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