Summary
ERROR TO THE COURT OE COMMON PLEAS OE BEDEORD COUNTY.
No. 432 January Term 1888, Sup. Ct.; court below, No. 83 April Term 1887, C. P.
On February 28, 1887, an action was brought by Frank Miller against The Niagara Fire Insurance Co., of New York, to recover upon a policy of insurance dated January 21, 1886, for one year, for $2,100 upon a dwelling and $400 upon the personal property therein contained. The narr was in assumpsit. The plea was non assumpsit, payment with leave, etc., with the following notice of special matter to be offered in evidence by the defendant on the trial of the ease :
8. That plaintiff did not comply with the first clause of his policy under the title, “Warranty of the Insured.” He omitted to state many things material to the risk. He represented that the judgments and liens against him did not exceed $800, when in truth and in fact they exceeded 01,500. His personal property was seized and taken in execution and in the custody of the sheriff. Had these facts been made known to defendant no policy would have issued; other liens were entered against plaintiff, and he did not make this known to defendant as he was required to do by his policy.
4. Plaintiff did not comply with any of the terms, provisions, and conditions of his policy under the head and title of “ Proceedings in Case of Loss.” No statement was made to the New York office. No appraisement completed before suit commenced. No suit commenced within the time specified in the policy of insurance.
5. Defendant will insist that plaintiff shall show full compliance with all the stipulations in his policy under this head, and generally that ho shall be held to strict proof of the performance of all of his covenants, agreements, and stipulations as stated and set forth in his policy of insurance.
At the trial on March 27, 1888, the policy was found to contain the following provisions:
W AUK ANT Y OP THE INSTJEED.
The assured by the acceptance of this policy hereby warrants that any application, survey, plan, statement, or description connected with procuring this insurance, or contained in or referred to in this policy, is true and shall be a part of this policy; that the assured has not overvalued the property herein described nor omitted to state to this company information material to risk. And this company shall not be bound under this policy by any act or statement made to us by any agent or other person which is not contained in this policy or in any written paper above mentioned.
PROCEEDINGS IN CASE OE LOSS.
If the loss sustained be upon a building, fixtures, or machinery, the assured shall, if required, furnish duly verified plans and specifications of such property destroyed or damaged.
It is hereby expressly provided that no suit or action against this company for the recovery of any claim by virtue of this policy, shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements, nor unless such suit or action shall be commenced within twelve months next after the fire shall have occurred.
The facts appearing from the evidence are fully indicated in the charge to the jury, Baer, P. J.:
The plaintiff in this case, on the 21st of January, 1886, procured from the defendant company, a policy of insurance on his house at Hyndman, and personal goods. The policy promises to pay, in ease of loss, such an amount, not exceeding the sum insured, and not exceeding what it would cost to repair or replace the destroyed property, estimated at a cash value and deducting a suitable amount for depreciation. The house was insured at $2,100, and the household goods at $400. This policy was sent by mail the next day or soon after. The premium was paid at a later day, but was accepted by the company, and so it is the same as if paid at once. The insured house burned down on March 2, 1886, and the loss was a total loss. The personal property also burned, but not all of it. The insurance on the personal property was $400; and, though the goods burned were alleged to be worth $490, still $400 is all that can be obtained if the plaintiff is entitled under the evidence to recover.
The terms of the contract require certain notice. Preliminary notice was given, and proofs of loss were made and sent. It seems the company desired a more formal and specific statement which, it seems, was also made. The plaintiff having established by proof the insurance, and having made proof of loss by fire of the house and the personal property, and having given due notice of the fire with proofs of loss, is entitled to recover the damages sustained by the fire according to the terms of the policy, on proof of the cash value of the property destroyed, less a suitable amount allowed for depreciation; unless you find that the defendant company has by evidence in the case shown that for some reason the plaintiff is not entitled to recover.
The defence set up is:
1. That the plaintiff, at the time of applying for insurance, omitted to state matters that were material to the risk, saying that judgments and liens against him did not exceed $600, whereas they exceeded $1,500.
2. That the plaintiff did not make known the fact that the sheriff had a levy on his household goods at the time.
8. That the plaintiff has not complied with the terms and conditions of his policy under the head of “Proceedings in Case of Loss.”
They called Mr. Moore as witness for the defendant company, who is also the agent who placed the risk, and he says he inquired of Miller, what, if any, liens existed, and that Miller said $500 or $600, and that he said nothing about the sheriff’s having a levy on his personal goods. The manager took an affidavit from the plaintiff before Squire Burkett, and in that Mr. Miller replies to interrogatories that were propounded by the manager, that he told Moore at the time that the judgments against him were $500 or $600, and that he had no recollection whether he told him the sheriff had a levy on his goods. The records produced in evidence show that the sheriff had a levy on his personal property, but tbe proof shows that it was still in the actual possession of Miller; and the records also show that the judgments then against him were about $1,500.
[Assuming for the purpose of the statement that, as the defendant claims by the terms of the warranty, this state of facts created a warranty, and that the breach of it made the pplicy void according to its terms, we still have to say to you that if the defendant, having knowledge of the breach, had time to make it void and did not do so, it is not void; for the law is that it is voidable at the will and pleasure of the company, and having not done so, the policy is valid. Whether or not such opportunity was waived is a question of fact for the jury.]3
But, before answering the question of waiver, you must first find whether there was a breach. First, what were the facts ? Was there, in point of fact, a representation of some facts and a concealment of others that were material to the risk; that Moore claims would be material to the risk?
Defendant argued that Mr. Moore is corroborated by Mr.Tenney, the manager, by Burkett, and by the affidavit. Is this so ? The jury will remember that Moore said no one else was present. Miller also says the same. What Moore says, Miller say's he said, at the time of the taking of the insurance. It is the affidavit of Miller that is called on as corroboration. Burkett merely swore him and took it down. If a court house full of people would say they saw and heard that, it would not make it stronger: it would still be the oath of Miller.
Moore’s statement in this case, the plaintiff undertakes to answer: — First, he swears that he told Moore that he knew of |500 or 1600 of judgments, but that there might be more and he not know; that Moore should inquire of Prothonotary Emons; that he told him his personal property was levied on; that his object was to get insurance to procure a loan by mortgage to pay his debts. Having his attention called to the affidavit, Miller says that he was in great trouble; that it was but a few days after the fire, and that he hardly knew what he was about. The affidavit was dated on the 5th of March, and the fire was on the 2d, yet in that affidavit the fire was stated to have been on the 1st. He says that he answered questions propounded by the manager, and that what he said about judgments was true; but that he was not asked if he told Moore anything more; .that if he had been asked he would have told it. From this plaintiff’s counsel argue that there is no inconsistency between Miller’s affidavit and his oath on the stand. It is alleged that there was no cross-examination, you have been in court long enough to know how that is done, and only the answers of Miller written down, and, as there was no cross-examination Moore is not thereby corroborated.
We say to you that this is a question of fact for you to decide between these witnesses. Tenney says Miller was cool and collected; the ’Squire says he took the testimony down, and Miller also says the testimony was written by the ’Squire. You must determine what were the facts at the time of taking this testimony. If the facts were as Mr. Moore testified, then there was a warranty and breach; but if you find the facts as Miller testified, then there was no warranty and breach, and this would be the end of the case.
If there was a breach of warranty, than we go further. We inquire then whether or not the defendant waived a right by allowing the matter to run on from time to time. A waiver need not be in writing. The breach is alleged to arise from the alleged statement of Miller that the liens were $500 or $600, whereas they were $1,500, and in not stating that his goods were under levy.
As evidence on which the plaintiff asks the jury to find a waiver of this breach, he alleges : — ■
First, that due notice of the fire was given, and prior to March 81st, a statement, or proof of loss, including statement of liens, was duly mailed to the company and received. In reply to which, the company wrote: “We are in receipt of yours, inclosing statement of loss, etc., which we have forwarded to our managers, Messrs. Brown & Tenney, Philadelphia, who have charge of all losses in Pennsylvania.”
That on April 28, 1886, in reply to a letter of April 22d, Mr. John Tenney, a manager from the office of Philadelphia, writes: “We return herewith the alleged proof of loss of Mr. Frank Miller at hand with your favor of 30th ult., and shall be glad if you will have Mr. Miller furnish us with entirely new proof on blank inclosed, made out in full compliance with the terms and conditions of our policy.”
That the proof of loss as hereby suggested or requested was in due time made out and forwarded.
That the plaintiff having waited until June 26th, caused his attorney to write on the subject; and to the inquiry, Mr. Brown, a manager of the Philadelphia department, writes on the 28th: “ The matter of the claim of Frank Miller is in the hands of our associate manager, Mr. Tenney, who is out of town to-day, and will be absent during this week. It shall be referred to him for immediate action upon his return.”
That on the 8th of July, 1886, John Tenney, manager, writes in reply to the letter of June 26th, and says substantially : “We are looking into the matter of Frank Miller’s loss, and will communicate with you another time. We desire you in the meantime to furnish us with verified plans and specifications of the building destroyed, to be attached and to become a part of the proof of loss furnished with your favor of the 14th inst.”
That the plans and specifications were made by Mr. Horn, an architect and builder, and sent on December 16, 1886, mailed as previous letters had been.
On January 20, 1887, a letter was addressed to Mr. Brown, and asked: “ Will you inform me if the company has any objections, and if any, what they are, to the payment of the loss ? ” It also asked that appraisers be appointed. There was no reply to this. Appraisers were appointed; one by the plaintiff and one by the company. The appraisers met and appraised the loss of personal property; then they entered upon the examination of the loss by the burning of the house. They progressed to a certain extent when the appraiser chosen by the company alleged that he could no longer remain, and left, and the appraisement was not completed.
That up to this time, although nearly a year had transpired, and though the time limited by the policy within which to bring suit was one year from the date of the fire, no objection was stated or made that in the least informed the plaintiff on what grounds, if any, the defendant objected to payment. That he was led on by letters suggesting more formal proofs of loss and specifications, from time to time; and when letters were received, he was not informed of any defect, though he asked to be informed, what, if any, objections there were.
That before the formal proof of loss, and long before the request for appraisers, the company, if the evidence is believed, knew the extent of the incumbrance that existed at the time of the insurance, and knew that the personal property was then under levy, but still in plaintiff’s possession at the time of the insurance, and knew what it is alleged Miller said concerning the liens and levy.
That it never asserted an intention to resist payment because of an alleged breach of warranty arising from misstatement or concealment and that the plaintiff was led on to go to the expense incident to an appraisement and to making more formal proofs of loss.
This line and course of conduct, the plaintiff alleges, estops the defendant now from interposing or setting up a breach of warranty arising from any falso statement as to amount of liens or concealment of fact of levy on personal goods.
[If you so find the facts, then though there be a condition in the policy that makes the policy void by such breach of warranty, yet the policy was not absolutely void, but it was only voidable if the company, after having information of the facts that create the breach of warranty, in a reasonable time, and without misleading the party insured into unnecessary expense, chose to make it void and so informed the assured.] 3
But if they did not do so, the jury, if they find the facts as alleged, may find that the breach of warranty was waived. And, if they find it was waived, then, unless some other ground of defence is established, the plaintiff would be entitled to the verdict.
Whether the defence set up, that the provisions of the policy under the head of “ Proceedings in Case of Loss ” were not complied with, has been sustained, is a question of fact for the jury on the evidence.
Now we are asked to charge you on certain points. Wo read the points of the plaintiff first:
1. That under all the evidence in this case the verdict must be for the plaintiff.
Answer: We decline to affirm that point.
2. If the jury believe that the defendant, three days after the fire, sent the manager of the company to plaintiff’s premises, who inquired as to the full circumstances attending the taking of the insurance, and with this information and full knowledge of all the statements now claimed by defendant to have been made by plaintiff at procuring insurance, and with the further information of the actual amount of liens and that the personal property had been levied on by the sheriff, the company called on the plaintiff for proofs of loss which were forwarded and then returned by the defendant for correction, and corrected proofs on the printed blank sent for that purpose, by the company, were forwarded by plaintiff, and after that defendant called for plans and specifications, which he at great expense and. trouble procured, and during all this time made no objection to the payment of this loss on any grounds, and wrote plaintiff’s attorney the letters in evidence,3 the jury may find from the facts and circumstances that the company waived the forfeiture of the policy on the grounds of any misstatement as to liens or execution on personal property and incumbrances, or any omission to state fully in relation thereto ; and then the verdict should be for plaintiff.
Answer: That point is affirmed.1
3. If the jury believe that Miller, in procuring the insurance made the statements and representations in the manner testified to by the plaintiff, then he is entitled to recover under the contract of insurance and the pleadings in the case, if he made no concealments and was guilty of no fraud or bad faith.
Answer: This is affirmed.4
The jury returned a verdict in favor of the plaintiff for $2,751.25; and judgment being entered thereon, the defendant took this writ assigning as error :
1. The answer to the plaintiff’s second point.1
2. The part of the charge embraced in [ ] s
3. The part of the charge embraced in [ ] 3
4. The answer to the plaintiff’s point.4
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
