Powell v. Agricultural Ins. Co., of Watertown

• Decision Date: 16 July 1896
• Docket Number: 79-1896
• Parties: David C. Powell v. The Agricultural Insurance Company of Watertown, N.Y., Appellant
• Court: Pennsylvania Superior Court

2 Pa.Super. 151

David C. Powell v. The Agricultural Insurance Company of Watertown, N.Y., Appellant

No. 79-1896

Superior Court of Pennsylvania

July 16, 1896

Argued April 21, 1896 [SYLLABUS MATTER] [SYLLABUS MATTER] [SYLLABUS MATTER]

Appeal by defendant, from judgment of C. P. Washington County, Aug. Term, 1893, No. 175, on verdict for plaintiff.

Assumpsit on a policy of fire insurance. Before McIlvaine, P. J. Verdict for plaintiff for $ 600.

The facts of the case, including the essential portions of the policy of insurance, are stated in the opinion of the Superior Court as follows:

On October 29, 1892, the defendant company, by A. A. Hill, its authorized agent, insured the plaintiff's dwelling house against fire in the sum of $ 600 for one year from that date, and received the premium from the insured. The building, with its uninsured contents, was totally destroyed by fire May 10, 1893, and on the following day the plaintiff sent a written notice of the loss to Hill, the agent who countersigned the policy, and afterward on the same day called and told the agent what he knew about the fire. From the information thus given him, the agent then wrote and mailed to the company a formal notice or report of the loss, stating the day and hour of the fire, the number of the policy, the amount of insurance, that the loss was under item No. 1 of the policy " (On Dwelling house)," -- the name of the assured, the character and location of the insured property, and that: " There was no one about the house at the time the fire occurred. They had gone into town, everything was consumed, furniture and all, there was nothing left only stone wall." This report was signed and mailed to the company on the same day and was received at the general agency of the company in Baltimore, Md., May 12, 1893. The plaintiff, according to his testimony, believed that he had thus complied with all the requirements of the policy.

Some six weeks after the fire, the company sent their special agent, Torrence, to investigate the loss, and according to the statement of D. A. Clarke, the general agent of the company, he reported that the house was unoccupied at the time of the fire, and was in bad condition before. The general agent in his letter to Mr. Hill, dated June 13, 1893, after referring to the special agent's report, says: " If the assured should come to you for information as to how to proceed in relation to this matter, please refer him to his policy, and give no directions whatever. Also state to him that you have no authority to act in cases of adjustment. I am afraid you have gotten us in a bad scrape, but perhaps if you will follow out my instructions, we will get out of it without much difficulty."

The policy required that the insured, within sixty days after the fire, should render a statement to the company, signed and sworn to by him: " Stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof, and the amount of loss thereon; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a copy of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposure of said property, since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof, were occupied at the time of fire." This statement was not furnished and no formal proofs of loss were made.

Upon the trial the company defended on two grounds, namely. That no statement as called for by the policy was rendered by the plaintiff; and that the insured building was vacant for ten days preceding the fire within the meaning of the policy, and therefore the plaintiff was not entitled to recover. The first ground of defense was not denied by the plaintiff and the company submitted testimony in support of the second.

Errors assigned were, refusing to permit the witness, Hill, while on the stand to refresh his memory from certain papers handed him by counsel; in part of the charge as follows:

" Now, Mr. Powell testifies, and he is corroborated, that the morning after the fire he first sent a young man that was in his employ, Mr. Mikesell, to A. A. Hill, the agent of the defendant company who took this insurance, with a note in which it was stated in writing simply that the house upon which he had taken the insurance from the defendant company had been burned the night before. The next day, however, he, in company with Dr. Storer, went to see the agent personally and then made a statement to the agent in regard to the fire; and the agent took down the facts in regard to the fire, as stated by him on a blank that the company had furnished him on which to make reports when there was a loss to the company. Now, that report, as filled out, was signed by Mr. Hill. Mr. Hill took down, as we understand the testimony -- and you will recollect whether that is correct or not -- the statement as made by Powell for this report that he made to the company of the fire and of the loss; he didn't have Mr. Powell sign it and swear to it, but he signed it himself and sent it in. Now, as a matter of fact the manner in which the loss was communicated to the company, and the amount of it, was not strictly in compliance with the conditions as set forth in this policy; but the law says that this is a condition not of insurance but a condition upon which depends the right of the insured to bring a suit, and therefore we must give it a reasonable construction, and not such a forced construction as would prevent the doing of justice between the parties.

" Now, taking into consideration the fact that the company had knowledge of what was insured, a dwelling house, a single item of property, the fact that the value of the house was fixed by the policy, the insurance that was placed upon it, the fact that Mr. Hill communicated to them, he being their own agent, that the house had been entirely destroyed, we leave it to you to say whether or not, taking into consideration the response of the company to Mr. Hill and the fact that there was a man sent out by the insurance company to look at the house -- we leave it to you to say whether or not the company under the circumstances waived a strict compliance with this condition. If they did, then the plaintiff has properly brought his suit and can stand upon the implied waiver, if you should find there was one; and we leave that question to you."

Answer to the defendant's point, which point and the answer to it follow:

The plaintiff having failed to show that he furnished either to the defendant itself, or to any of its agents, the proofs of loss stipulated for in the policy, he cannot recover and the verdict must be for the defendant. Answer: Refused. Subject to what we have said in our general charge, we leave it to you whether formal proof of loss was waived by the company or not. If it was not, the plaintiff cannot recover, and the verdict should be for the defendant.

H. M. Dougan, for appellant. -- The charge is objectionable in that it inadequately, and sometimes incorrectly, states the law applicable to this case: Beatty v. Ins. Co., 66 Pa. 9; Gould v. Ins. Co., 134 Pa. 587; Everett v. Ins. Co., 142 Pa. 343; Inland Ins. & Deposit Co. v. Stauffer, 33 Pa. 403; Desilver v. Ins. Co., 38 Pa. 133; Ins. Co. v. Hebard & Forsman, 95 Pa. 45; Girard Life Ins. Co. v. Ins. Co., 97 Pa. 28; Ins. Co. v. Helfenstein, 40 Pa. 296. Refusal of the defendant's point was error for the reason that compliance with the stipulations of the policy involved conditions precedent to plaintiff's right to recover: Desilver v. Ins. Co., 38 Pa. 133.

To submit a fact destitute of evidence as one which may nevertheless be found is an encouragement to err which cannot be too closely observed, or unsparingly corrected: Stouffer v. Latshaw, 2 Watts, 167; Egbert v. Payne, 99 Pa. 244; New baker v. Alricks, 5 Watts, 183; Evans v. Mengel, 6 Watts, 72; Hannay v. Stewart, 6 Watts, 487; Switland v. Holgate, 8 Watts, 385; Prescott v. Union Ins. Co., 1 Whart. 399; Wilson v. Davis, 5 W. & S. 521; Gilchrist v. Rogers, 6 W. & S. 488; Bradley v. Grosh, 8 Pa. 45; Jones v. Wood, 16 Pa. 25; Sartwell v. Wilcox, 20 Pa. 117; Kirkpatrick v. Vanhorn, 32 Pa. 131; Jordan v. Headman, 61 Pa. 176.

Jno. C. Bane, for appellee.

Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.

OPINION

SMITH, J.

The...