Freedman v. Providence Washington Insurance

Insurance — Fire insurance — Proof of loss — Waiver—Evidence. Waiver of the proofs of loss may be inferred from acts of the insurer which show either a recognition or a denial of liability exclusively on other grounds. 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, it would be inequitable to enforce. At the trial of an action upon a policy of fire insurance, the insurance company set up as a defense misrepresentations as to the ownership of the goods. The plaintiff claimed a waiver of the fraud. The evidence showed that at a time when the agent of the company was trying to adjust the loss, he specified no particular ground of defense. He made inquiries as to the extent of the loss, the value of the' • goods destroyed, and proposed a settlement. When this was refused he notified the plaintiff to go on and make out her proofs of loss; and, after the proofs were made out, he called her attention to a formal defect in them. Held, (1) that he did nothing to mislead her, to place her in a worse position or cause her to incur any expense which she would not have been obliged to incur had he remained silent; (2) that the evidence was insufficient to show an intention to waive any ground of defense.

Appeal, No. 48, Jan. T., 1896, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1892, No. 633, on verdict for plaintiff. Assumpsit on a policy of fire insurance. Before Peck, P. J. The facts appear by the opinion of the Supreme Court, and from the part of the charge of the court below, which is as follows : If you believe that Louis Freedman made known to Mr. Sturdevant the truth, that R. Freedman, the plaintiff in this case, was a married woman, and by accident or clerical error or some mistake this policy has been written as it is, then we think that the plaintiff would be entitled to recover, because no fraud has been practiced upon them. The original policies were solicited by Mr. Sturdevant himself, and we think that he was not the agent of the assured, so that if afterward he made any representations which were not true and which he had no right to make from information which he had received from the plaintiff or her authorized agent, then we say that the company would not be bound by any such statements made. Because, in obtaining this insurance, we think that under the weight of authority he was the agent of the company and not the agent of Mrs. R. Freednan. If you believe under the instructions which we have given to you that R. Freedman’s agent correctly represented to Mr. Sturdevant her condtion, and made known to him that she was a married woman and all the necessary facts to enable him or the company to have issued a policy which was correct, then you may take into consideration whether or not this was an honest loss. And if it was an honest loss, you may go a step farther and determine whether or not she has suffered the amount of loss which she claims. [If, on the other hand, you believe that Mr. Sturdevant tells the matter as it is, then you may advance to another stage in the proceedngs, although you believe under our instructions that this policy as originally issued, was not binding upon the company, owing to the false statements which were made by Louis Freedman, and determine whether or not the company have, by any act of theirs, ratified this policy, or done such acts as would estop the company from denying that the policy was a good and valid policy.] [7] On this branch of the case the plaintiff relies upon the evidence, first, of the husband, Bernard Freedman, who testifies that in April, 1892, Mr. Little, who was the special agent of this company, came to his store together with a man by the name of Walker; that they came to the store and inquired if Mrs. Freedman was at home, and that he said to them that she was, and that they then inquired if they had the boolrs and papers ready for examination. I think in connection with this Mr. Freedman had been notified that these men would come and examine the papers and books, but I am not quite positive whether this evidence was in this case or another — but at any rate they came to the store, according to his statement, and made the requests which we have stated to you. That he told them that the papers were not at the store but that they were over at the house, and that he would go over and get them. That he did go and get them and brought them back to the store, and that they inquired where they should go to examine the papers. That he said he was willing to go anywhere, and they suggested to go to Mr. Tidd’s office, an insurance agent at Athens. That they went over there, and that the insurance agents asked him certain questions about Mrs. Freedman, where she had got the goods, and other matters pertaining to this loss, and then made him a ¡certain offer of settlement of the case. That this offer was declined and he returned to the store, and in fifteen or twenty minutes after he returned to the store they came back to the store, and inquired whether he had made known their offer to Mrs. Freedman and what she said about it, and that he replied that he had not done it, but it was no use, she would not accept, and that they then told him to go on and makeproofs of loss. They also rely upon the letter, dated June 3, which required him to go to Laceyville and obtain an affidavit, from the nearest magistrate, of the loss, setting forth certain things as required by the terms of this policy. It seems from the evidence that he did go there, and took an attorney with him, for the purpose of obtaining the proofs which the company required, but you will remember in this letter there was this proviso put in, or this qualification, “ The Providence Washington Insurance Company does not waive any of its rights and conditions under the policy.” That is, that they did not waive any of their rights or conditions under the policy. That is, if the policy required anything, that that must be complied with notwithstanding this demand, and that this demand was no waiver of any conditions in the policy. [Now, if that policy was void on account of fraud and the defendant had a right to claim it so, then they had no right whatever to compel the plaintiff to produce proofs of loss or anything else,] [8] because if the policy was void on their part it was equally void as far as the defendant was concerned. If the company was not bound, neither was the plaintiff. There must have been a mutuality in this contract or else it was no contract at all. That is one of the grounds upon which the company might legally refuse to pay this policy, because there was not a. mutuality between the parties. They had agreed to insure, according to their theory, a man, and this plaintiff was trying to enforce this policy in favor of a woman, and they did not both agree to the same thing, according to their theory. So if the policy was void on the part of the company they could not enforce anything of this kind against the plaintiff. If it was void as to one it was void as to both, unless they chose to ratify it. But in pursuance of this notice he did go to Laceyville with his attorney, and procured the papers that were required. The company shortly afterward, through Mr. Little, their special agent, demanded that he should procure certain duplicate statements, and that there may be no misunderstanding about it we will read this letter, “ Exhibit R,” as it appears. “ The Providence Washington Insurance Company. J. W. Little, Special Agent. G-lenside, Pa., June 14th, 1892. R. Freedman, Athens, Pa. Madam: I have the magistrate’s certificate lately sent by yourself. Regarding the various articles claimed by yourself as having suffered loss thereon by fire, you are hereby asked to procure and have for examination, bills or duplicates thereof, showing dates, place of purchase and prices paid for the articles ' above named. It will be necessary for you to do this before the company can recognize the papers furnished them as a proper proof of loss in that regard, under conditions of their policy No. 918 issued at the Wilkes-Barre, Pa., agency and held by yourself. Truly Yours, (signed) J. W. Little, Sp. A. Prov. Wash. Ins. Co. In connection with this letter that has been called to your attention, considerable time has been spent in giving evidence as to when the duplicate bills were obtained, and it is for you to determine, under all the light that you have when the duplicates were obtained. Were they obtained on the 12th of April, when Mr. Little was on there for the purpose of examining the papers ? If he had all the duplicate bills and all the accounts on that occasion, would he or would he not be likely to have written this letter demanding that she should obtain them ? It is for you to determine under the evidence whether or not he did. The plaintiff claims that after that request she did go on and procure, at considerable expense and cost, these duplicate bills. [Now, in order to estop the company they must have known the facts. They must have known that this was a married woman and they must have been acquainted with all the facts, in order for them to estop themselves. If they did know the facts and required this plaintiff to do what she would not otherwise have done — required her to go to an expense which she would not otherwise have incurred — -if they did, knowing the facts, require this, then they are estopped from denying that they were bound by this insurance.] [9] Defendant’s points were among others as follows: 1. The plaintiff, being a married woman when the policy in suit was issued, in order to recover thereon must give such evidence in regard to how the policy came to be issued to a male as would warrant a chancellor in reforming the same before she can recover upon the policy. Answer : We affirm this, unless you are satisfied that the truth was made known to the agent who took this policy. Their we say that she cannot recover unless the company has since waived this forfeiture by its conduct. [1] 2. No sufficient evidence has been given to warrant a reform of the policy as specified in the first point. Answer: We deny this point, or we leave to you as a matter of fact whether or not .Louis Freedman, William Freedman, and the other witnesses that have been called to corroborate them, tell the truth, or whether Mr. Sturdevant tells the truth. [2] 5. There was no sufficient evidence to submit to the jury to find that the defendant company has waived its right to defend the action on the policy on the ground that it was procured by means of the false representations of the plaintiff’s agent. Answer: We refuse so to charge you, but we submit to you the evidence of what the agents of this defendant knew; whether they did know all the facts and whether they required the plaintiff to go to trouble and expense which she would not have gone to and incurred had she known that the defendant was refusing to pay this policy on the ground that it had been procured by fraud. [8] 6. There is no sufficient evidence to submit to the jury that the company has estopped itself from defending the action on the policy on the ground that it was procured by means of the false representations of the plaintiff’s agent. Answer: We decline to so instruct you, but we leave, as we before stated, that question for you to determine. [4] 7. S. A. Sturdevant in procuring the policy in suit from the Wilkes-Barre agency of the defendant was the agent of the plaintiff under the evidence in the case, and it appearing that Sturdevant when he procured it represented that the insured was a male, the company by the policy did not insure the plaintiff. Answer : We decline so to instruct you. [5] Yerdict and judgment for plaintiff for $2,383.66. Defendant appealed. Prrors assigned were (1-5, 7-9) above instructions, quoting them.