Sutton v. American Fire Ins. Co.

• Decision Date: 07 November 1898
• Docket Number: 99
• Citation: 188 Pa. 380,41 A. 537
• Parties: J.H. Sutton v. The American Fire Insurance Company, Philadelphia, Appellant
• Court: Pennsylvania Supreme Court

41 A. 537

188 Pa. 380

J.H. Sutton v. The American Fire Insurance Company, Philadelphia, Appellant

No. 99

Supreme Court of Pennsylvania

November 7, 1898

Argued October 24, 1898

Appeal, No. 99, Oct. T., 1898, by defendant, from judgment of C.P. Venango Co., Aug. T., 1897, No. 44, on verdict for plaintiff. Affirmed.

Assumpsit on a policy of fire insurance. Before CRISWELL, P.J.

The facts appear by the opinion of the Supreme Court.

The proofs of loss were offered in evidence by the plaintiff.

They were objected to by counsel for the defendant on the ground that they were not in compliance with the requirements of the policy in several respects, and particularly in that they did not contain a statement of the original cost of the personal property alleged to have been lost and the present value thereof.

The plaintiff offered to prove that the next day after the fire the agent of the defendant company, Mr. C. S. Marks, came to the place of the fire and made an examination of the loss that within a few days after, the adjuster, Mr. Allewalt came there in company with Mr. Marks, interviewed Mr. and Mrs. Sutton, secured all the information he desired, and in going away made the remark to them that that was all that was necessary for them to do; this to be followed by evidence that Mr. Sutton did everything that was required of him by the terms and conditions of the policy.

To which offer the defendant objected on the ground that it was an attempt to dispense with the proofs of loss under the policy and to substitute oral testimony therefor in violation of the express conditions of the policy.

The Court: It appearing that the paper purporting to be a proof of loss made by the plaintiff under this policy and the letter offered in connection with that were, on or about the date of the letter, received by the defendant company and now produced by the company, upon request, at the trial, the same are received in evidence and the objection thereto overruled.

To which ruling counsel for the defendant did then and there except, and at their request a bill of exceptions was sealed. [1]

Defendant asked for instructions that, the plans and specifications not having been furnished by the plaintiff to defendant company until June 7 or 8, 1897, the action is prematurely brought, and the plaintiff is not entitled to recover in this action.

The court charged as follows:

[Under the evidence in this case we think we will answer the defendant's point in the negative and instruct you to find a verdict for the plaintiff. The plaintiff is entitled to recover the amount claimed here as shown by the proofs, with interest from and after sixty days after the delivery of the proofs of loss. The amount claimed, with interest, at this date, amounts to $3,253.95.]

Verdict and judgment for plaintiff for $3,253.95. Defendant appealed.

Errors assigned among others were (1) ruling on evidence, quoting the bill of exceptions; (4) above instruction, quoting it.

The judgment is affirmed.

J. H. Osmer, with him A. R. Osmer and N. F. Osmer, for appellant. -- Waiver is essentially a matter of intention, and to establish it there must be some declaration or act from which the insured may reasonably infer that the insurer does not mean to insist upon a right which, because of a change of position induced thereby, would be inequitable to enforce: Freedman v. Providence Washington Ins. Co., 175 Pa. 350; National Ins. Co. v. Brown, 128 Pa. 386; Beatty v. Lycoming Co. Mut. Ins. Co., 66 Pa. 9; Carpenter v. Allemannia F. Ins. Co., 156 Pa. 37; Diehl v. Adams Co. Mut. Ins. Co., 58 Pa. 443.

A statement of loss may be waived by the company, and if there be evidence from which a waiver may be inferred it is for the jury: Farmers' Mut. Ins. Co. v. Taylor, 73 Pa. 342; Welsh v. London Assurance Corp., 151 Pa. 607.

William H. Forbes, with him Edward E. Hughes, for appellee. -- If the proofs were deemed insufficient it was the plain duty of the company to give immediate notice of its objections, pointing out the supposed defects, etc.: Gould v. Ins. Co., 134 Pa. 586; Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Whitmore v. Ins. Co., 148 Pa. 405.

In case of a total loss of the building insured where the insurance company has been notified immediately, no further notice or technical proof of loss is necessary: Ins. Co. v. Dougherty, 102 Pa. 568; Roe v. Ins. Co., 149 Pa. 94.

Before GREEN, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The defendant company on June 11, 1894, issued to plaintiff a policy of insurance against loss by fire in the sum of $3,400 on his farm buildings, dwelling house, barn, household and kitchen furniture, produce in barn, horses and mules; the term kitchen furniture, produce in barn, horses and mules the term of the policy was three years. On February 7, 1897, the buildings and part of the property contained therein were destroyed by fire; the plaintiff claimed his loss was...