Jacoby v. North British & Mercantile Insurance

Opinion bt Beeber, J., Although the pleadings in this case raised many issues of fact, when the case came to trial the only question tried was whether notice of the fire and proofs of loss had been sent to the defendant. The plaintiffs were relieved of the necessity of proving an adjustment or the extent of their loss in view of the defendant’s admission at the trial, that the amount claimed in the plaintiff’s statement was the share due by the defendant in case it was [377] liable at all. This renders immaterial the first assignment of error, which is the refusal of the court to affirm the point sub mitted by defendant, asking the court to say that nothing done by Weiser at the time of filling up the proofs of loss could be binding on the defendant as an act of adjustment of the loss. As the question of adjustment was no longer in the case, it was immaterial whether the acts of Weiser on that occasion amounted to a binding adjustment or not. In view of the rule of court set forth in the appellee’s paper-book, which is in force in the court in which this case was tried, the acceptance of the policy in evidence, which is the subject of the fifth assignment, was proper. The refusal of the defendant’s offer in evidence of the affidavit of defense as testimony to prove the defendant’s denial of the receipt of notice of the fire and of the proofs of loss, which is the subject of the tenth assignment, was right. No attempt has been made to show that the affidavit is evidence of the facts alleged in it, either under the said rule of court, or under any general rule of evidence. The third and sixth assignments go to the sufficiency of the evidence to establish the plaintiffs’ contention that proofs of loss were sent to the defendant. The testimony on the part of the plaintiffs was to the effect that proofs of loss were made on a certain day by one Weiser, signed and sworn to by the plaintiffs and then delivered to him, who was one of the members of the firm of Deininger & Weiser, local agents of the defendant, which firm had also countersigned the policy. All this evidence as to making out the proofs of loss was, of course, contradicted by Weiser, but the jury found for the plaintiffs. It is insisted by the defendant that this is not sufficient evidence, even if believed, to prove that the proofs of loss were sent to any of the officers of the company. The court below correctly decided that it was sufficient to prove a compliance with the terms of the policy, and that it was expressly made so by the terms of the Act of. June 27, 1883, P. L. 165, which provided that where insured property was destroyed by fire in this commonwealth the conditions of the policy, as to notice of loss and furnishing of preliminary proofs, shall be considered complied with, if they are given to the agent of the company who countersigned the policy within a certain time. The seventh, eighth and ninth assignments relate to the cross378 examination of the defendant’s witness. In his examination in chief he had testified that he had not filled out proofs of loss for the plaintiffs, nor had he sent any to the defendant. Plaintiffs sought to avoid the effect of this by asking him whether he had not, at a prior time, made a statement in reference to this matter contradictory to the one which he had just made on the stand. We think this was proper. It is common practice to show, if one can, that a witness on a prior occasion had made statements inconsistent with his present one. Such cross-examination is not admissible for the purpose of showing that the witness had deceived others, which was one of the announced purposes for which plaintiffs’ counsel examined him in this way, but it is clearly admissible, under all the authorities, for the purpose of showing that his account of matters, as to which he is giving testimony, has not always been the same, which was the other purpose for which this examination was conducted. It is true such a witness has a right to explain any contradictions, if he can, and such right was exercised in this case — to such an extent, in fact, that we cannot believe that the defendant’s case was weakened to any appreciable degree by this attempt to impeach the testimony of this witness. In any event, it is a legitimate way to impeach the testimony of a witness, and we must sustain this well established rule. The second assignment is to the refusal of the court to affirm the fourth point of the defendant. So far as this point requested the court to charge that the delivery of the proofs of loss to the local agents did not operate as a waiver of any defects in them, as it appeared “ they were not sent to or received by the company,” we think it would have been an error to have affirmed it, because to have done so would have been a declaration by the court that it appeared that the proofs of loss had not been sent to or received by the defendant. This was the crucial point of the case. There was testimony that the proofs of loss had been given to the countersigning agent, which, under the said act of assembly, is a compliance with the conditions of the policy requiring proofs of loss to be sent to the company. It would have been plainly improper for the court to affirm this point which required it to assert that it appeared that proofs of loss had not been sent to or received by the defendant, when this was the very question to be decided by the jury, [379] upon the conflicting evidence as to proofs having been made out and given to the countersigning agents. During the cross-examination of one of the plaintiffs he said that, in those proofs of loss which he had given to the agent, nothing was said as to the existence of incumbrances against their insured property. Defendant then offered in evidence the record of two judgments against the plaintiffs, which were liens against the insured property, so far as it was real estate, for some years prior to the date of the policy, and continued so down to the time of making proofs of loss, for the purpose of showing that the plaintiffs were precluded from recovering because they had sworn falsely as to the incumbrances upon the insured property, which was in violation of that clause of the policy making “ false swearing by the insured touching any matter relating to the risk whether before or after loss ” a defense to a claim upon the policy. The rejection of this offer is the eleventh assignment. In the consideration of the question involved in this assignment, care must be taken to distinguish this case from those where a false statement is made in the application, upon the faith of which the policy is issued, Commonwealth Mut. Fire Ins. Co. v. Huntzinger, 98 Pa. 41, and from those where, in violation of a condition in the policy, an incumbrance falls upon the property, with or without the knowledge of the insured after the date of the policy and before loss, without notice having been given to the insured: Seybert v. Penna. Mut. Fire Ins. Co., 108 Pa. 282; Penna. Mut. Fire Ins. Co. v. Schmidt, 119 Pa. 449; Hench v. Ins. Co., 122 Pa. 128. In all the cases, of which these are types, it is uniformly held that false statements and subsequent incumbrances defeat the policy, whether they are made innocently or otherwise, or whether they fall upon the property with or without the knowledge and consent of the insured, but the present case belongs to neither one of these classes. It does not appear that the plaintiffs ever made any false statements upon the faith of which the property was insured, but it does appear by this offer that these judgments were incumbrances prior to the time of the issuing of the policy. In such a case it has been expressly decided that such judgments do not invalidate the policy: Dwelling House Ins. Co. v. Hoffmann, 125 Pa. 626. [380] It is strenuously insisted that these incumbrances should have been submitted to the jury with instructions that false answers in the proofs of loss and concealment of the existence of these incumbrances would avoid the policy. But mere false answers or concealment of the existence of incumbrances, made in proofs of loss, do not defeat the policy. It must appear that the false answers were made wilfully and knowingly, and with a view to cheat the company: Franklin Ins. Co. v. Updegraff, 43 Pa. 350. The case of Ellis v. Ins. Co., 7 Pa. Superior Ct. 264, cited by appellant, is easily distinguished from the present case. In that case the insured testified that she had knowingly made the false statements in her proof of loss. With this evidence in the case, we said: “ This is not the case of mistake of statement unwittingly or ignorantly made. Such mistakes are open to correction. Here the sworn misstatements are made and repeated on the witness stand, with knowledge that they are untrue. The guilty knowledge determines the fraudulent intent. . . . The fact of false swearing is thus proven, and where perjury is thus knowingly committed, the question cannot be submitted to the jury whether the intent was to defraud. The intent is demonstrated not only by the acts of the insured but by her admissions.” In the present case the offered evidence did not show that there was a false statement in the proof of loss knowingly made, but an omission to state something. The witness did not say that he stated in the proofs of loss that there were no incumbrances, but that nothing was stated as to them. If the defendant wishes to take advantage of defects in proofs of loss, which it insists at the same time that it never received,- it must stand charged with the duties of one who has received defective or unsatisfactory proofs. If the answer to the questions in proofs of loss is ambiguous, or if there is no answer at all, and if the insurer wants specific, definite information, it is its duly to return the proofs with information as to the defects to be remedied, and ask for more specific proofs: Ins. Co. v. Cusick, 109 Pa. 157. The jury have found, in effect, that the defendant did receive these proofs of loss. All the authorities show that it cannot hold the proofs of loss with knowledge of the defects in them, and then, on the trial, attempt to avail itself of the defects unless it has notified the insured and given him a chance to correct them. Failing in this, it will be [381] presumed that it is satisfied with the proofs as received in the first instance. The fourth assignment is to the refusal of the court to give binding instructions for the.defendant. No discussion of this is necessary. It was clearly a case for the jury. Being of the opinion that the case was rightly tried, and that no reversible error was committed, all the assignments are overruled. Judgment affirmed.