Powell v. Agricultural Insurance

Opinion by Smith, J., (after stating the facts as set out in above statement) : The court left it to the jury to say whether, in view of the information given by the plaintiff to the company’s agent, together with the facts stated, the company had waived a strict compliance with the section of the policy calling for the specific statement, and also, under instructions, submitted the question of vacancy for their determination. The jury found in favor of the plaintiff' for the amount of the policy. This action of the court forms the principal subject of complaint raised by the second and third assignments of error, and these will be considered together. An examination of the record and the assignments of error fails to disclose that any of the matters called for in the statement or proofs of loss was material or necessary in order to ascertain the bona tides of the plaintiff’s claim or its amount, or the extent of the defendant’s liability. The insured remained the sole owner of the property; its value at the time of the loss, according to the weight of the evidence, exceeded the amount of the insurance; there were no incumbrances and no other insurance on it; there was no change in the title; and the building was continuously occupied as a dwelling during the life of the policy, the only difference being that the owner succeeded a tenant in the possession, and occupied it as he liad done before the demise. The right to a “ change of occupants without increase of hazard ” is expressly given by the policy. The evidence was abundant to sustain the finding that the building was occupied and that there was no vacancy during the period covered by the policy: Doud v. Dwelling House Ins. Co., 141 Pa. 47. While the testimony leaves little doubt that the company had concluded within the sixty days not, to pay the loss on the ground that the building was vacant as stipulated [157] against in the policy, yet it does not appear that the plaintiff knew this or was notified of it within that period, and therefore that would not avail him, or in itself excuse his noncompliance with this provision of the contract: Gould v. Dwelling House Ins. Co., 134 Pa. 570; Everett v. London etc. Ins. Co., 142 Pa. 332. There is no doubt under the law that where the subject of insurance embraces many items of property, specific proofs must be rendered as required by the policy, because the particulars are or may become necessary in order to properly adjust the loss; and where certain matters required to be stated in the proofs are necessary in order to ascertain the extent of the company’s liability, those things should be furnished: Insurance Co. v. Hocking, 115 Pa. 398. The insurer may waive the production of specific proofs, or, by the conduct of its officers, be estopped from requiring them. If the present case turned on the existence of such waiver or estoppel, the sufficiency of the evidence to establish this might well be questioned. But as we view the case, a decision of this question is unnecessary. When the subject of the insurance is a single structure, and notice of its total destruction by fire during the life of the policy has been duly given to the insurance company, and there is nothing to indicate that specific proofs are in any manner necessary or useful to the company, in order to determine its rights or ascertain the extent of its liability under the policy, and no assertion or claim of that character is made, neither justice nor sound public policy requires that the insured shall be deprived of the substantial fruits of his contract because he has failed to furnish those immaterial and unnecessary particulars. To insist upon them under these circumstances “ would be to oppose the barest technicality as a bar to the plaintiff’s right to recover ’a strictly honest claim: ” Insurance Co. v. Dougherty, 102 Pa. 568. It has been said by the Supreme Court in many cases that where the subject of insurance was a single structure which had been totally destroyed by fire, and the insurance company was duly notified of the occurrence, no further notice or technical proof of loss was necessary to enable the insured to recover on the policy: Insurance Co. v. Schollenberger, 44 Pa. 259; Insurance Co. v. Moyer, 97 Pa. 441; Insurance Co. v. Davis, [158] 98 Pa. 280; Insurance Co. v. Dougherty, 102 Pa. 568; Insurance Co. v. Staats, 102 Pa. 529; Insurance Co. v. Cusick, 109 Pa. 157; Insurance Co. v. Haws, 20 W. N. C. 870: Weiss v. Insurance Co., 148 Pa. 349; Roe v. Insurance Co., 149 Pa. 94; McGonigle v. Insurance Co., 168 Pa. 1. It is true that in each of these cases one or more additional reasons were set up as grounds for relieving the insured from the duty of submitting formal proofs of loss, but the principle stated had a controlling though not an exclusive influence in their disposition by the Supreme Court. In Roe v. Insurance Co., supra, this principle and that of waiver were both applied, and the Supreme Court, Justice Fell delivering the opinion, said: “ Both of these principles were applicable to the facts of this case, and either of them is sufficient to defeat the defendant’s defense.” The policy in that case — which, though not given in the report, is found in the appellant’s paper-book — called for a specific statement of all the matters required by the policy in the case before us. The company never asked for any proofs of loss, and it is quite evident from the caution of the general agent to Mr. Hill that none were desired. Evidently it was hoped that, through the meshes of technicality, the company might get out of a “bad scrape,” which in this instance, apparently, meant the payment of an honest claim. The facts bring this case within the principle governing losses on single subjects of insurance, without infringing any of its qualifications, and therefore, we hold that the plaintiff was not required to furnish more specific proofs. The first assignment is devoid of merit. It complains that the court erred in refusing to allow a witness to refresh his memory from a paper proposed to be handed to him. But the record and notes of evidence show that afterward, and before the witness finished his testimony, by permission of the court he was allowed to step aside and examine the paper, and resuming was asked what he thought “ after having refreshed your recollection by looking at that paper; ” and the witness answered the question, without objection. Having thus fully secured everything withheld by the first ruling, the defendant was not injured and has nothing .upon which to base a complaint here. It has been held that when, upon the trial, documents (Wertz v. May, 21 Pa. 274), or witnesses (Rogers v. Kichline, [159] 36 Pa. 293), or testimony (Worrall v. Pyle, 132 Pa. 529; Nesbitt v. Turner, 155 Pa. 429) have been rejected, but after-wards admitted, tbe error has been cured and there is nothing left for correction by an appellate court. The criticism of what the learned court said relative to the correspondence between the local and general agency, and the visit of the special agent to the scene of the fire, is hypercritical, and, under the substantial facts of the case, wholly unwarranted. While in the due administration of the law this court must regard and enforce technical rules of practice, we will neither broaden their scope, nor extend their application except where that can properly be done and the ends of justice require it. The assignments of error are overruled, and the judgment is affirmed.