Universal Ins. Co. v. Weiss.

• Decision Date: 14 April 1884
• Citation: 106 Pa. 20
• Parties: Universal Mutual Fire Insurance Company <I>versus</I> Weiss Brothers.
• Court: Pennsylvania Supreme Court

Page 20

106 Pa. 20

Universal Mutual Fire Insurance Company versus Weiss Brothers.

Supreme Court of Pennsylvania.

March 13, 1884.

April 14, 1884.

March 13, 1884.

Before MERCUR, C. J., GORDON, PAXSON, TRUNKEY, STERRETT, GREEN and CLARK, JJ.

ERROR to the Court of Common Pleas of Northampton county: Of January Term, 1884, No. 190.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Reeder & Reeder, for the plaintiffs in error.—A condition in a policy of insurance that there shall be no waiver of its terms except it be in writing and indorsed on the back of the policy, is valid, and it was therefore error to refuse our third point, and to permit the jury to find a parol waiver of the condition requiring formal proofs of loss: Waynesboro' Ins. Co. v. Conover, 2 Out., 384. But assuming the admissibility of evidence of a parol waiver in such cases, the evidence in this case was insufficient for the purpose. The only evidence of such waiver was that of George Weiss, who testified that Crosse promised to send Reuben Weiss a check for the amount of his policy. Reuben Weiss failed to testify to any such promise, and there was no evidence that he or any of the plaintiffs either heard the promise, if made at all, or acted upon it. To constitute a waiver it must be shown that the fact of such waiver was known and acted upon by the plaintiffs. We submitted this plain legal proposition to the court for its affirmance in our fifteenth point; its refusal was clearly error.

The Court also erred in instructing the jury that this was a "valued policy:" Wood on Ins., §§ 41, 42; May on Ins., § 30; Luce v. Ins. Co., 105 Mass., 297. Even in the case of a "valued policy," while notice of the total destruction of a building may be a sufficient notice of loss, yet the rule has never been extended to personal property: Home Ins. Co. v. Davis, 2 Out., 280. In any view of the case, there was no evidence of a waiver of the limitation of six months, within which an action could be brought under the policy, and our thirteenth point, withdrawing the case from the jury, should have been affirmed.

P. C. Evans, for the defendants in error.—There may be a parol waiver of a condition in a policy of insurance, requiring a written waiver of the terms of a policy to avoid the consequences of non-compliance therewith: Inland Insurance Company v. Stauffer, 9 Casey, 403; Franklin Fire Insurance Company v. Updegraff, 7 Wr., 359; Lycoming Insurance Company v. Schollenberger, 8 Wr., 261; Drake v. The Farmers Insurance Company, 3 Grant, 325; Ben. Franklin Fire Insurance Company v. Flynn & Hamm, 2 Out., 627; Susquehanna Ins. Co. v. Staats, 6 Out., 529; Penna. Ins. Co. v. Dougherty, 6 Out., 568; Davis v. Ins. Co., 8 R. I., 277; Farmers' Ins. Co. v. Taylor, 23 P. F. S., 342; May on Ins., § 511. Under the authority of Farmers' Ins. Co. v. Moyer, 1 Out., 44, and Ins. Co. v. Schreffler, 8 Wr., 269.

This policy has all the essentials necessary to make it a "valued one," and it must have been so considered by Mr. Crosse, the president, the day after the fire, or he would have taken some step to ascertain how much the company was liable to pay. He knew the company had a policy for $1,000, he saw the ruins and collected an assessment after the fire, saying that unless it was paid they would be counted out, and said "he'd send a check for the loss when he got back to Philadelphia." He made no objection to the form of notice until the time for making it had expired. The insurer must object in a reasonable time: Clark v. New England Fire Insurance Co., 6 Cushing, 342; Great Western Insurance Co. v. Staaden, 26 Ill., 360; State Insurance Co. v. Maackens, 38 N. J., 564; Young v. Hartford Fire Insurance Co., 45 Iowa, 377; Ætna Fire Insurance Co. v. Tyler, 16 Wend., 385; May on Insurance, 468; Flanders on Insurance, 598.

Mr. Justice GORDON delivered the opinion of the court, April 14, 1884.

The contract of the parties litigant is to be found in the policy, and the conditions thereto attached, and to the terms and provisions of the agreement, as found in those papers, both parties must be held or neither. The insurance company can only be made responsible for the alleged loss, under the policy, by a showing by the Weiss Brothers of the performance of the conditions of that instrument on their part. To hold otherwise would be a mere travesty of justice. The principle here stated is not, indeed, denied, but an attempt has been made to avoid its effect by the interposition of the doctrine of estoppel. It is said, and so the court below permitted the jury to find, that the defendant, through its chief officer, acted in such a manner as to induce the plaintiffs to believe that it had or would waive the conditions, the breaches of which are now set up as a defence, and that it was thus estopped from taking advantage of the alleged want of conformity to the contract on part of the plaintiffs.

If the statement here made has been sustained by the proper proofs, and if, by reason of the acts and declarations of the agent of the company, the plaintiffs were induced to abstain from doing that which they otherwise would have done in the way of performance, then, and in that case, the defendant's contention can avail nothing in this court, and the judgment must be affirmed; for the principle here stated is so abundantly supported by authority that an attempt to overthrow it must fail of success. But when we come to look for the proofs by which the plaintiffs undertake to sustain their proposition, we are not able to discover them. The language of...