Sutton v. American Fire Insurance

Opinion by Mr. Justice Dean, The defendant company on June 11,1894, issued to plaintiff a policy of insurance against loss by fire in the sum of $3,400 on his farm buildings, dwelling house, barn, household and kitchen furniture, produce in barn, horses and mules; the term of the policy was three years. On February 7,1897, the buildings and part of the property contained therein were destroyed by fire; the plaintiff claimed his loss was $3,099. He gave immediate notice of the fire to the company; as the policy required that within sixty days thereafter he should under oath furnish the company with a full and detailed schedule of the property destroyed, he, on March 25, following, transmitted to the company such statement or schedule as was deemed by him a compliance with this requirement; from communications of defendant’s adjuster to plaintiff’s attorney it appeared that these proofs were not satisfactory, so on June 7 following, he sent to [383] the company verified plans of the buildings and other particulars ; these were acknowledged by the president the next day, in a letter stating they had been referred to Mr. Allewalt, their adjuster; he, by letter of June 21, to plaintiff’s attorneys, objected to the specifications as defective. • Before this letter was received the plaintiff had brought suit. At the trial the defendant alleged that plaintiff had not complied with the requirement of the policy in furnishing a full and complete statement of the loss within sixty days. The court held, that the preliminary proofs having been transmitted to the company on March 29, and received by it the next day, and no reply thereto having been made, or any special defects therein pointed out until May 18, fifty days thereafter, this delay was equivalent to a waiver of any objections to the form of the proofs or defects therein. We concur with the court below in this opinion. There was no specification of any defects in the proofs which would have enabled plaintiff to cure them; that Allewalt, the adjuster, said to plaintiff’s attorneys either verbally or in writing, that they were defective was not the information plaintiff had a right to demand; he and his counsel had made an apparently honest effort to specify with particularity the loss, as required by the policy; it was the duty of defendant to particularize wherein they had failed to meet the condition, and to do this with reasonable promptness: Gould v. Ins. Co., 134 Pa. 586; Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73; Whitmore v. Ins. Co., 148 Pa. 405. The trial, therefore, after the ruling of the ceurt, proceeded and plaintiff offered in evidence to the jury, the proofs of loss furnished to the company, March 25,1897. No purpose in this offer was disclosed; none requested by either defendant’s counsel or the court; as the sole burden on plaintiff, at that juncture, was, to establish the extent of his loss to the jury, the offer of the preliminary proof could have been for no other purpose. Clearly they were neither competent nor relevant to such purpose ; when they had been transmitted to and received by the company they had performed their office; that is, fulfilled a condition precedent to the right to sue; and if they had been objected to for that reason by defendant’s counsel the court would have been bound to exclude them. The objection, however, was not to their relevancy or competency, but because [384] “they are not in compliance with the requirements of the policy in respect to proofs of loss in several respects, and particularly in that they do not contain a statement of the original cost of the personal property alleged to have been lost, and the present value thereof.” This question had been settled by the court’s decision; that these defects had been waived, and the plaintiff was not barred from the jury by a noncompliance with a condition precedent; and while tins did not render the preliminary proofs of loss competent to establish plaintiff’s claim before the jury, still, they could only be excluded by a well-founded objection, and not by one ill-founded, and which by implication admitted their competency. The defendant might still have saved his case by a request for instruction to disregard the incompetent evidence, but having neglected to do this he must submit to a verdict founded on evidence which at the trial he impliedly admitted was proper evidence. The remaining assignments of error are without merit. The judgment is affirmed.