Weiss v. American Fire Insurance

Per Curiam, A careful examination of the numerous specifications fails-to disclose error. The plaintiff’s 5th point might well have-been affirmed, as the facts contained therein, if found by the jury, were clearly evidence of a waiver. The court declined to affirm it, but said the facts as stated therein tended to prove a waiver, and, in connection with the other testimony in the case, were sufficient to justify the jury in finding the fact of’ waiver. This instruction was more favorable to the defendant than it had a right to expect, and is not the subject of just ground of complaint. [357] We find no error in the instruction, that if the incumbrances did not exceed the original amount of incumbrances when the insurance was effected, the policy has not been avoided. We are also of opinion that the learned judge did not err when he instructed the jury that “ the issue of the scire facias by Mrs. Munson on her mortgage, one or two days before the fire, did not avoid the policy.” The scire facias was not a technical foreclosure within the meaning of the policj'. It was not, therefore, violated in terms. Nor do we think it was violated in spirit, as there had been no alienation of title, or change of possession and increase of risk, which is the gist of the reason for the clause referring to foreclosure. The objection, that the proofs of loss were not furnished in the time required by the policy, is without merit. The loss was a total one upon buildings. The proofs were furnished in a few days after the time limited in the policy. Prompt notice had been given to the company of the loss, and the latter sent its agent and adjuster to investigate it. The company denied all liability under its policy. The adjuster attempted to settle for $750, and left, saying he would be back again in a short time. The proofs of loss were received by the company and retained for eighty-six days, without any objection thereto, upon any ground, until it filed its affidavit of defence in this case. It has been decided in numerous cases that, where an insurance company retains the proofs of loss without objection for a considerable period of time, it is a waiver of any defects therein: German & American Insurance Co. v. Hocking, 115 Pa. 406. It has also been repeatedly held that, where a company denied its liability upon other grounds, formal proofs of loss are not necessary: Fire Ins. Co. v. Erb, 112 Pa. 149; Union Type Foundry v. Kittanning Ins. Co., 138 Pa. 137. It is also to be noticed that this was a total loss upon buildings. In such case the law is settled that formal proofs of loss are unnecessary: Farmers’ Ins. Co. v. Moyer, 97 Pa. 441; Pa. Fire Ins. Co. v. Dougherty, 102 Pa. 568; Ins. Co. v. Cusick, 109 Pa. 157; German & American Ins. Co. v. Hocking, supra. Judgment affirmed.