Trask v. State Fire & Marine Ins. Co. of Pennsylvania

• Decision Date: 03 November 1857
• Citation: 29 Pa. 198
• Parties: Trask v. The State Fire and Marine Insurance Company of Pennsylvania.
• Court: Pennsylvania Supreme Court

29 Pa. 198

Trask v. The State Fire and Marine Insurance Company of Pennsylvania.

Supreme Court of Pennsylvania.

November 3, 1857

1858

Where a by-law of an insurance company required that the insured should give the company immediate notice of any loss that occurred, and which was annexed as a condition to the policy, notice given of the loss eleven days after it occurred was too late, where no sufficient excuse was shown for the delay.

The facts that the secretary of the company received the notice without objection as to time, and gave instructions to the insured as to the form of the statement of his loss, and that an agent of the company subsequently made examinations respecting the loss, were not a waiver of the want of due and timely notice.

Where the company was discharged from liability by the want of notice in due time, responsibility for the loss would not re-attach to them, without proving authority in the agents to waive the notice, or a new consideration to sustain it.

ERROR to the Common Pleas of Erie county.

A. N Trask, a merchant in Albion, Erie county, Pennsylvania, on the 26th day of February, 1851, obtained a policy of insurance in the State Mutual Fire Insurance Company, at Harrisburg, on his stock of goods, for the sum of $1200, for one year; the property insured was destroyed by fire on the 2d day of May, 1851. Trask sent a written notice to the company on the 13th day of May, 1851, of his loss, and the defendant acknowledged the receipt of the notice on the 17th of the same month, by letter to Trask, and made no objection as to the notice not being in time, and by letter, dated May 19th, gave directions to Trask how to make out the statement of loss. The agent of the defendant, soon after the notice was given, went to Albion and investigated the cause of the fire and extent of the loss. On the 26th day of May, 1851 Trask sent to the company a particular statement of the loss verified by oath; and on the 10th day of May, 1853, brought this suit to recover the amount of his policy.

After the evidence was closed on both sides, the court, in answer to points of the defendant, instructed the jury that the plaintiff was not entitled to recover, because he had not complied with a by-law of the company, annexed to the policy requiring the assured to give notice of the loss " forthwith" to the secretary of the company. That the notice given, in this case, ten days after the fire, was too late. That the letter of the secretary, acknowledging the receipt of the notice, making no objection on account of the delay, giving directions to the insured how to make out his statement of loss, afterwards sending an agent to examine into the origin of the fire and extent of the loss, receiving the particular statement, verified by oath, and making no objections to the time of giving the notice up to the time of trial, was no waiver on part of the defendant. Of the ruling and decision of the court upon that point the plaintiff complains.

Thompson and Marshall, for plaintiffs in error.--The clause, requiring the insured to give notice of the loss forthwith, should be construed with great liberality: McLaughlin v. Washington Co. Mu. Ins. Co., 23 Wend. 525.

It was the duty of the company upon the receipt of the notice, in case it intended to object to the payment of the loss, in consequence of the want of proper notice by the insured, to have promptly informed him that he had failed to comply with the terms of the 21st article of the by-laws, and it would not entertain his claim on that account....