Davidson v. Guardian Assurance Co.

Opinion by Mr. Justice Fell, The plaintiff held two policies of insurance issued by the defendant company and covering the same risk. It was admitted that one of the policies was in force when the fire occurred. It was claimed at the trial that the other policy, although written for three years, was intended to be for one year only. The fire occurred March 28, 1893. The policy in question was for the three years beginning August 1, 1891, and ending August 1, 1894. The words “ for the term of three years ” were written in the body of the policy by the agent of the company. The numeral 4 in the date 1894 was written over an erasure. It was not alleged that this had been done by the plaintiff. The ground of defense was that when the plaintiff received the policy he had, or should have had, knowledge of the mistake made by the agent or his clerk, and that with a design to take advantage of the mistake he had retained the policy instead of offering to return it or to pay the additional premium for the full term; in brief, that it was not a contract for three years, and that the plaintiff had not been misled by the agent’s mistake to his injury. It was incumbent upon the plaintiff to remove the suspicion which attached to the policy- by reason of the apparent alteration. This was done. Before it was admitted in evidence he testified that it was then in the same condition that it was in [535] when received by him, and that he had accepted it and relied upon it as a policy running for three years. The issues raised by the testimony were submitted to the jury with great care and with entire fairness to both parties. There was ample evidence both of an express waiver of proofs of loss and of facts from which an implied waiver could arise. On the day of the fire the plaintiff wrote to the agent through whom he obtained the insurance, and five days afterward to the general manager of the insurance company, informing them of the loss. On the day after the fire the agent visited the premises, and after examining the policies arranged a meeting between the adjuster of the company and the plaintiff. The adjuster, after ascertaining that the loss was total and in excess of the amount of the insurance, assured the plaintiff that he liad done everything that was necessary and that the loss would be paid, and agreed to prepare and send to the plaintiff the proofs of loss ready for his signature. At the end of two. weeks, not having received the proofs, the plaintiff wrote to the agent calling his attention to the agreement and asking if there was anything which he should do. The agent replied by letter, denying the liability of the company on one of the policies, admitting it as to the other, and requesting the plaintiff to correspond with the New York office. The plaintiff then wrote to the manager of the New York office stating that he had been advised to do so by Mr. Henry, the adjuster, and asking that' he be addressed in regard to the matter. To this the manager replied that he assumed that the correspondence referred to the policy for one year, and “ on that assumption we beg to refer you to the printed terms and conditions of said policy, which give full instructions as to the mode of proceeding in the event of loss.” The plaintiff at once replied, saying that the letter he had received was very unsatisfactory, that his claim was on both policies, and asking for a more specific statement of the position of the company as to the responsibility for the mistake in writing the policy. With this the correspondence ended. The authority of the agent in Pennsylvania, and of the adjuster, to do all that they assumed to do is undenied. There was a distinct and specific agreement in relation to the proofs of loss which relieved the plaintiff from any duty in relation to them until they were presented for his signature. This agreement [536] was made at a time when the adjuster knew of the dispute as to one of the policies. The assent of the company to the agreement was never withdrawn. The liability of the company on one of the policies was at all times admitted, and the denial of liability upon the other was based upon specific grounds. “ The trend of our decisions has been to hold insurance companies to good faith and frankness in not concealing the grounds of defense and thus misleading the insured to his disadvantage. They may remain silent except when it is their duty to speak, and the failure to do so would operate as an estoppel; but having specified a ground of defense very slight evidence has been held sufficient to establish a waiver as to other grounds.” Freedman v. Fire Ass’n, 168 Pa. 254. The judgment is affirmed.