Bonnert v. Pennsylvania Ins.

1. A condition of a policy of Are insurance providing that no suit thereon shall be sustained unless brought within six months after the loss shall accrue, may be waived, not only by express words, but by acts and conduct of the company and its officers, which throw the insured off his guard and lull him into security. 2. The testimony showing that proofs of loss were furnished within the time prescribed, that all the plaintiff’s books and papers were promptly presented on the defendant’s demand, that adjustment was delayed by the company upon various pretexts, and that after the limitation expired the company offered to go on and adjust the loss upon receipt of other books and papers demanded, the question whether or not the limitation as to time was waived by the company must be submitted to the jury.

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF JEFFERSON COUNTY. No. 200 October Term 1889, Sup. Ct.; court below, No. 193 December Term 1887, C. P. On November 29, 1887, J. V.. Bonnert brought assumpsit against the Pennsylvania Insurance Company, to recover upon a policy of insurance against loss or damage by fire, to the amount of $1,000, on his store building and stock of goods therein, at Clarion Mines. The defendant company pleaded non assumpsit, and specially, that a condition of the policy sued upon- expressly provided “ that no suit or action against this company, for the recovery of any claim by virtue of this policy, shall be sustained in any court of law or chancery, unless such suit or action shall be commenced within six months after the fire shall occur; ” whereas the defendant says, etc. At the trial on December 18, 1888, before Wilson, P. J., the plaintiff put in evidence the policy of insurance of defendant company, for the sum of $1,000, for one year from July 1, 1886, containing a condition such as that set out in the defendant company’s special plea. He then followed by testimony showing a loss of his store-building and stock by a fire which occurred on March 25,1887, the loss reaching about $3,500; that a day or two after the fire the plaintiff went to Brookville and saw the agent of the defendant company, who said he would attend to the matter; that in April, receiving no word from the agent, the plaintiff consulted Mr. Hall, his attorney, and made out proofs of loss and filed them with the various certificates, within thirty days after the loss, as required by the policy; that on April 19th, the company’s agent wrote Mr. Hall that their adjuster had been notified to adjust the claim, and the day he would attend would be telegraphed; that on Friday, May 6th, Mr. Hall received a telegram from Allewelt, the adjuster, sent the evening before, requesting him to have the plaintiff at Broekwayville, on Friday morning, with all his books and papers; that- Mr. Hall wired the adjuster that the plaintiff could not be reached before Saturday; that about the middle of May the adjuster demanded that the plaintiff should meet him with all his books and papers at the office of the company in Pittsburgh; that on May 31st, the plaintiff with his attorney met the adjuster with the secretary of the company, at their office, when the plaintiff presented all the books of account, bills, invoices, etc., of his store at Clarion Mines, and also an inventory of the goods he had taken from his store at Rasselas, Elk Co., to stock the Clarion Mines store, in the first instance; that the adjuster demanded that plaintiff should furnish all the books and papers from his store at Rasselas, assuring him that if he complied with the demand for the additional papers, etc., his loss would be speedily adjusted; that, returning home, the plaintiff on June 10th sent to the adjuster every book and paper he had, in any way connected with either place of business; that on July 11th the adjuster wrote Mr. Hall that the plaintiff had not sent him all the papers, etc., demanded, and requested those not sent; that the additional papers demanded were either impossible to obtain, or had never had any existence, and on September 5th Mr. Hall wrote to the defendant company demanding the return of the books and papers in defendant’s possession ; that on September 10th the defendant replied declining to return them, and on September 24th (the day the six months limitation expired), Mr. Hall again demanded their return and threatened legal proceedings to compel it; that on October 5th, the adjuster wrote Mr. Hall again declining to return the books, etc., and offering to go on and adjust the claim, stating that the reason he had not done so before was because of the want of the additional papers demanded; that on October 10 th, Mr. Hall again wrote the company demanding the books and papers and stating that he proposed to bring suit; and that on October 25th, Allewelt replied stating that he could no longer speak for the defendant as he had been relieved in the matter. Then this suit was brought. The case of the plaintiff having closed, defendant, by counsel,’ moved the court for a compulsory nonsuit, for the reason that the plaintiff had not brought himself within the condition of the policy requiring suit to be brought within six months of the date of the loss, and there had been nothing shown by the plaintiff that by any possibility could be construed into a waiver of that condition by the company. Objected to by the plaintiff’s counsel, for the reason that the condition in the policy was for the benefit of the company and could be waived by itthat the waiver need not be express, but might be inferred from any act evidencing a recognition of liability, or even from a denial of obligation exclusively for other reasons; and whether or not there was a waiver was a question for the jury. By the court: The motion is granted, with leave, etc.1 The plaintiff filed a motion to vacate the judgment of nonsuit, and the motion being argued, the court, Wrusoir, P. J., on February 26, 1889, refused it.3 Thereupon the plaintiff took this appeal, assigning for error: 1, 2. The order entering the judgment of nonsuit, and the order refusing to vacate said judgment.1 3 1. Counsel cited: Coursin v. Insurance Co., 46 Pa. 323; Ben Franklin Ins. Co. v. Flynn, 98 Pa. 627; Leb. M. F. Ins. Co. v. Erb, 112 Pa. 149; Penna. F. Ins. Co. v. Dougherty, 102 Pa. 568; Inland Ins. Co. v. Stauffer, 33 Pa. 397; Lycoming Ins. Co. v. Schollenberger, 44 Pa. 259; Home Ins. Co. v. Davis, 98 Pa. 280; Commonwealth Ins. Co. v. Sennett, 41 Pa. 161; Penna. F. Ins. Co. v. Dougherty, 102 Pa. 568. 2. Under the foregoing authorities this case should have gone to the jury. The general dilatory conduct of the defendant, with the fraudulent intent to prolong the negotiations until after the time limitation had expired, would have amply justified a jury in the inference that the limitation had been waived'. The letter of October 5th, putting the refusal to pay on other grounds, and still expressing a willingness to adjust the loss after the six months had expired, was certainly a waiver of the limitation. 1. All the cases cited for the plaintiff, except that of Ooursin v. Penna. Ins. Co., are cases where the companies had denied liability exclusively on grounds other than insufficient proofs of loss, and in those cases it is held that such denial amounts to a waiver of proofs. This rule is very well settled in this state, but none of the cases cited apply here. 2. Coursin v. Insurance Co., 46 Pa. 323, was a case entirely different from this. The facts are not fully reported, but in that case, the general agent 'of the company, after the expiration of the limitation, sept for Coursin on several occasions and endeavored to comppo'hiise the claim. On this ground the case was sent to the jury and it was held: “ If the company acted and promised, sifter the action was legally barred, as if it did not intend to insist on the limitation, and put the party to trouble, expense ap;á anxiety in regard to his claim, they need not complain if the jjiry find that they did waive it.”