McFarland v. Kittanning Ins.

Opinion, Mr. Justice Mitchell: The subject of waiver by acts in pais, notwithstanding stipulations in a policy of insurance that nothing less than an express agreement indorsed on the policy shall be effectual for that purpose, has just been considered in Dwelling-House Ins. Co. v. Gould, ante, 570, (opinion filed herewith,) and we refer to the review of the cases there made, to show that the charge of the learned judge, that evidence of a parol waiver was not competent, cannot be sustained. Before reaching the conclusion, however, that the case was wrongly withdrawn from the jury, we must examine the facts set up as evidence of a waiver. The policy contained rather unusually stringent conditions that if the property was encumbered by judgment or otherwise, or should become so encumbered, without the consent of the [600] company indorsed thereon, it should cease to be binding on the company, and that nothing less than a specific agreement, clearly expressed and indorsed on the policy, should be construed as a waiver of any of the conditions. It is undisputed that there were encumbrances at the date of the policy, and others subsequently, of .which no notice was given or consent obtained. The liability of the company was therefore discharged if the company chose to so treat it, and had it remained passive there would have been no cause of action. But, in fact, the company did not remain passive. On receipt of the proofs of loss the secretary wrote asking for further information, which was furnished. An agent then called on plaintiff, with the proofs of loss in his possession, examined the remains of the fire, and, according to plaintiff, produced a list of the liens from the docket of the court, received explanations in regard to them, and then demanded an appraisement under'the terms of the policy. This latter statement and some others are denied by the defendant, but for the present purpose we must assume that the jury would have found them to be true. After some delay, appraisers were appointed by the parties, respectively, and an adjustment of the loss was made, which the agent of the company then promised should be paid in ninety days. These negotiations lasted nearly five months, and plaintiff alleges that during that time he was prevented from rebuilding his barn, and suffered other inconveniences and damage in consequence. In addition to this, the adjustment of the loss by the appraisers was, under the twenty-second condition of the policy, binding and conclusive as to amount; and, though they might give him but a small part of what he deemed his loss, the plaintiff was nevertheless harred, by his submission, from any larger claim. Do these facts, assuming the jury to find them, afford sufficient evidence of such a change in plaintiff’s position, to his detriment, and in reliance on the. acts of the company, as will justify the jury in finding a waiver, under the second branch of the rule laid down in Dwelling-House Ins. Co. v. Gould? In Coursin v. Ins. Co., 46 Pa. 323, the facts constituting the waiver are not reported, but the language of Justice Thompson, on page 331, is closely applicable to the present case: “ If it [the company] acted and promised, after the action was [601] legally barred, as if it did not intend to insist on the limitation, and put the party to trouble, expense, and anxiety in regard to his claim, they need not complain of a jury finding that they did waive it.” And in Niagara F. Ins. Co. v. Miller, 120 Pa. 504, 517, the present Chief Justice says: “If, with the knowledge in its possession of every fact upon which to avoid the policy, they misled the plaintiff for nearly a year, subjected him to the expense of procuring plans and specifications of his building, and never informed him that they would not pay because the policy was avoided, they have no ground to complain if they are now held to be estopped from setting up such a defence.” In this last case,'and also in Snowdqn v. Insurance Co., 122 Pa. 502, the facts relied upon to establish a waiver were certainly no stronger than they appear to be in the present; and, under those decisions, the latest and most analogous of a long line, we must hold that the evidence in the present case should have gone to the jury on the question of waiver. The learned judge apparently fell into error by following Universal F. Ins. Co. v. Weiss, 106 Pa. 20, too literally. Some of the expressions in the opinion therein upon the question of waiver of proofs of loss would probably justify the taking of the present case from the jury. But the opinion must be read in its connection, as applied to the evidence. The principle of waiver by acts and declarations, is expressly stated by the learned judge, but he then proceeds to the facts, and says that of waiver as to proofs of loss there was no sufficient evidence, and of waiver as to time of bringing suit no evidence at all. Upon its facts, the decision is in line with the others already cited. I have, of course, discussed the case entirely from the plaintiff’s point of view of the facts. The truth of plaintiff’s own testimony, of Crawford’s contradiction of it, of the latter’s knowledge of the encumbrances before his demand for appraisement, the extent of his authority, and how far his knowledge is that of the company, and other like questions, are for the jury on the weight of the evidence. The omission of notice of encumbrances is not, however, a mere formal defect, but a breach of a substantial condition of the insurance; and, in view of this fact, and of the express stipulation in the policy that nothing should amount to a waiver unless specifically agreed [602] to and indorsed on the policy, it will be the duty of the plaintiff to establish the parol waiver by a clear preponderance of evidence. But where a case is taken from the jury, and decided as a matter of law upon the sufficiency of the evidence, we must (as in cases of nonsuit, Elkins v. Insurance Co., 113 Pa. 386,) treat the plaintiff’s case as though the jury had found it to be true. Upon the actual facts or the weight of the evidence we indicate no opinion; indeed, we have none. Judgment reversed, and venire de novo awarded. •