Lycoming Insurance v. Schreffler

The opinion of the court was delivered, March 22d 1862, by Thompson, J. In The Commonwealth Insurance Company v. Sennett, Barr & Co., 5 Wright 100, we held it to be error to receive as evidence to go to the jury, the statement of the loss, made out by the insured under oath, pursuant to the required stipulation also to be found attached to this policy. It can never be evidence of the subject or amount of the loss sustained. Had this decision been known, the error in receiving the plaintiff’s statement as evidence generally, would undoubtedly have been avoided. The fact that it was called for, did not.make it evidence, as is sometimes the case in regard to papers. The insurers had a right to demand it, under oath, to be used by them for the same purposes as if made without oath, and were no further bound by it. The court committed an error in permitting the statement to go to the jury under the issues in the case, and for this reason the judgment must be reversed. 2. It is not necessary to determine whether the preliminary notice of the fire was in time or not, under the requirement to give it “forthwith.” The company acted upon it as received in time; made no objection, until the trial, that five days was too great a lapse of time. They had, in the mean time, sent an agent, who was also their attorney, to investigate the loss, its [192] extent, and who offered a certain compromise. This being refused, he demanded that the statement of loss should be made out under oath. Previously to this, Iiazen, another agent, says he made an offer, on the part of the company, of what they were willing to give to settle the loss, which was also refused by the plaintiff, and that he had been instructed by the company so to do. All this was after notice sent to the company. If it had not been in time, which we do not decide, these acts were sufficient to waive that objection, and estop the company from setting it up. The authorities cited by the defendant in error abundantly prove this. The request to charge on the point which raised the question of the sufficiency of notice, was, we think, substantially complied with in the general charge, and it was not necessary to repeat it in answer to the point. We see no error in this part of the case, but, for the reason already assigned the judgment must be reversed. Judgment reversed, and venire de novo awarded.