Davis ex rel. White v. Fireman's Fund Insurance

Opinion by' Reedeb, J., The defendant claims that the court below erred in submitting this case to the jury, first, because there could be no recovery, the policy containing the condition that it should be void “if the subject of insurance be a building on ground not owned by the insured in fee simple; ” second, that no proofs of loss were proven to have been made to the company after the loss of the building. It is admittedly true that the plaintiff’s building was constructed upon land the possession of which was acquired by the plaintiff by lease, that no application was filed, no fraudulent representations made by the plaintiff in the acquiring of [513] the insurance. It was testified to upon the trial that before the issuing of the policy the agent of the defendant company went upon the property and was told that the plaintiff’s interest in the property was that of a leasehold. The right to recover under such circumstances, in spite of a condition of this character written in the policy itself, has been repeatedly determined by the Supreme Court, so that it may be regarded as being the well established law of this commonwealth. In Caldwell v. Fire Ins. Co., 177 Pa. 492, it was held that a mistake in the policy had been made; it was chargeable not to the insured but to the company’s agent; and it should be imputed to the company itself. In that case Chief Justice Sterrett says: “ the policy in suit provides, among other things ‘ that it shall be void if the interest of the insured be not truly stated therein, or if the interest of the insured be otherwise than unconditional and sole ownership.’ The learned judge was asked to hold as a matter of law that there had been such violation of these provisions of the policy that there could be no recovery thereon. This he refused to do, and in view of the facts and for the reasons suggested by him in support of his judgment, we are not prepared to say that there is any substantial error therein. We find nothing in the record that requires reversal.” Again, “ where at the time of issuing an insurance policy the company knows' that one of the conditions thereof is inconsistent with the facts and the insured has been guilty of no fraud the company is estopped from setting up a breach of said condition. The same rule prevails when the insurance company ought to have known the facts constituting the alleged breach:” Wood on Ins., par. 427; Ins. Co. v. Spencer, 53 Pa. 353. In Phila. Tool Co. v. British-Am. Assurance Co., 132 Pa. 236, the policy contained a provision similar to the provision in this policy of insurance, that it should be void if the assured was not the sole and unconditional owner of the property, or if the building stood on ground not owned in fee simple by the assured, or if the interest of the assured was not truly stated, unless consent in writing was indorsed on the policy by the company. Justice Williams in that case says : “ A policy of insurance, like any other contract, is to be read in the light of the circumstances that surround it. This policy was issued [514] without any application or written request describing the interest of the assured in the buildings. No actual representation of any sort upon the subject, oral or written, is alleged to have been made by or on behalf of the assured. We ought to assume that a policy written under such circumstances was written with the knowledge of the representative of the insurer and intended to cover in good faith the interest which the assured had in the buildings. Fraud is never to be presumed, and in this case no fraudulent representation is shown or alleged — it can be deduced from the statements of the insurer made, as we presume, with the knowledge of its representative, and for which the assured is in no manner responsible.” These cases clearly indicate that a clause of that character in a policy of insurance where the insurer had full knowledge of the fact that the insurable interest upon which the policy issued was a leasehold and not a fee simple, is nevertheless an insurance of the leasehold interest, and the policy is not void because “ the building is on ground not owned by the insured in fee simple.” The assignment of error to that part of the charge of the court or the ruling upon the point submitted by the defendant, and the objection made to the offer of a copy of defendant’s proof of loss, cannot be sustained. The defendant company is a company having its main office in the state of California. This was a second trial of the same issue, the first having resulted in a mistrial. At the original trial, the original proofs of loss were present and offered in evidence. A subpoena to produce the original was served on the only agent of the company shown by the testimony to be within the jurisdiction of the court. The defendant was called upon at the trial to produce the original proofs of loss. They declared their inability to do so; that so far as they knew they were not then within the jurisdiction of the court. The plaintiff then offered a copy of the proofs of loss, which one of the witnesses testified he had carefully compared with the original proofs of loss, which had been mailed by one of the plaintiffs addressed to the defendant company at their principal office in San Francisco. When this preliminary proof was made, the copy of the proof of loss was admitted in evidence, the defendant objecting to its admission. The original not being within the jurisdiction of the court a duly proven [515] copy was admissible: Rhodes v. Seibert, 2 Pa. 18; Otto v. Trump, 115 Pa. 425. It is also contended by the defendant that, even though the papers offered in evidence as proofs of loss were properly admissible, they are inadequate according to the terms of the policju The building was totally destroyed by fire. The proofs of loss contained a statement of that fact. Where there has been a total loss of the building, and the company has been notified of that fact, no further or technical proof of loss is necessary: Roe v. Ins. Co., 149 Pa. 94; Ins. Co. v. Weiss Bros., 106 Pa. 20. But even though the proofs of loss could be held to be defective, nevertheless the defendant is not in position to take advantage of any defects in the proofs of loss because of his failure to object to the same, and to demand further proofs of loss from the plaintiff. If proofs of loss be furnished in time, a waiver of objections to the same may be inferred from mere silence: Gould v. Ins. Co., 134 Pa. 570; Whitmore v. Ins. Co., 148 Pa. 405; Welsh v. London Ins. Co., 151 Pa. 607; Carpenter v. Ins. Co., 156 Pa. 37; Dowling v. Ins. Co., 168 Pa. 234; McGonigle v. Ins. Co., 168 Pa. 1. This disposes of the subject-matter of all the exceptions. We desire to say however that even had we not decided this case upon the merits, we should have been obliged to come to the same conclusion, and affirmed the judgment of the court below because of the insufficiency of the assignments of error, they not being in compliance with the rules of this court. The first, second, third and fourth assignments are defective in not containing the reply of the court to the points presented. It is not in accordance with our rules of court to say in the assignments of error that the court declined to charge as requested. The answer of the court to the request must be set forth totidem verbis. The fifth assignment is defective under our Rule 15 since it embraces two points and raises two questions — first whether the copy of the proof of loss was admissible; second, whether the proof of loss, if furnished was such as the policy required. These questions are wholly independent of each other. Each rests on its own ground, and may be answered either affirmatively or negatively without involving the decision of the other. Moreover, the only exception shown by the assignment is to the ruling on the ground of the objection “ that it was the duty [516] of the plaintiff to have the proof of loss here.” This might be conceded without affecting the question raised by the offer. Secondary evidence, such as the offer presented is always admissible when the requisite ground has been laid. The objection here is not that this ground has not been laid, but that the duty of having the primary evidence has not been performed. Neither an objection nor an assignment of error is to be taken as implying more than it expresses ; what is not stated must he regarded as beyond its intent. In the absence of any objection based on failure to lay ground for the secondary evidence offered, it must be taken for granted that ground had been laid, and therefore that the secondary evidence was admissible. In this view ther.e was nothing for the objection to operate upon. The sixth assignment of error is to the failure of the court to enter a compulsory nonsuit. This is not the subject of an assignment of error. Error does not lie to the refusal of a non-suit : Bavington v. Railroad Co., 34 Pa. 358; Pownall v. Steele, 52 Pa. 446; Mobley v. Bruner, 59 Pa. 481; Easton Borough v. Neff, 102 Pa. 474. The other assignments of error, except the thirteenth and fourteenth are correct in form but they are all without merit, and are fully covered by what we have already said with reference to this case. Judgment affirmed.