Brumbaugh v. Home Mutual Fire Insurance

Opinion by Beayer, J., 1. Plaintiff brought his action to recover the amount of the defendant’s policy of insurance. On the trial in the court below, the defendant proved by the witness, James S. Woods, Esq., that the plaintiff had made a proof of loss to another insurance company which had issued a policy, insuring the same property, fixing his entire loss at $925.86. Upon cross-examination, the plaintiff’s attorney aslted the witness whether or not the plaintiff had not telephoned him the day of the fire, fixing his loss at a much greater amount than that stated in the proofs of loss to the company which he represented. His reply was, “ I don’t know whether he said about $2,500, or over $2,500. He used the term, $2,500.” The testimony was admitted under exception and the defendant assigns the admission of it for error. The cross-examination was an entirely proper one and the evidence competent and relevant. In these respects it was precisely what the defendant itself was offering. The plaintiff, as has been frequently held, was not bound by the amount fixed in his proofs of loss. This would have been so, if the proof of loss offered had been furnished to. the present defendant. Much more is it true under the circumstances here. The proof of loss furnished the German American Insurance Company, represented by the witness, was simply one form of a declaration as to his loss. The fact that they differed did not render the latter incompetent. It was for the jury to say which was correct. The assignment is overruled. 2. As already intimated, the plaintiff was not bound as to the value of the property destroyed by the proof of loss furnished to the German American Insurance Company. Even if the statement as to his loss had been contained in the proofs furnished the defendant' company, it would not have been conclusive. No proofs of loss were furnished in this case and it seems to have been conceded that the necessity for furnishing them was waived. The plaintiff explained, under exception, the manner in which the proofs of loss furnished the German American Insurance Company were made out. The explanar tion was competent and relevant “ the truth and satisfactoriness [148] of which was for the jury to pass upon: ” McSparran v. Southern Mut. Ins. Co., 193 Pa. 184. We see nothing erroneous in the admission of the testimony complained of in the second assignment of error. ^ 3. The application for the policy, upon which this suit was founded, was taken by C. D. Sparr, the president of the defendant company and also its principal soliciting agent, which fact is to be emphasized in this case. He was not an ordinary agent but one of the executive officers of the company. He was informed, as the plaintiff alleges, as to the existence of other insurance. His recollection and that of the plaintiff as to what was said differ materially but the jury has determined the issue in favor of the plaintiff and we must assume that his version of what was said at the time the insurance was effected is the correct one. Assuming this to be true, the defendant accepted the application and issued the policy, with the knowledge that other insurance was in force upon the same property. This was a waiver of the clause in the policy which provides : “ It is covenanted as a condition of this contract that this company is not liable . . . for loss or damage, if there is prior or subsequent insurance on the property, whether valid or invalid, without the written consent of the company indorsed hereon.” There was no indorsement of previous insurance but the company, having accepted the application fee and the cash premium and having issued the policy with the knowledge of the existence of other insurance must be taken to have waived the condition in the policy in regard thereto. In Kalmutz v. Northern Mut. Ins. Co., 186 Pa. 571, where the subject of waiver is fully discussed, Wood on Insurance (2d ed.), pp. 1162, 1163, is quoted with approval as follows : “ Where other insurance is required to be indorsed on the policy, if notice thereof is given to the insurer or its agent and consent is not indorsed nor the policy canceled, further compliance is treated as waived and the insurer is es-topped from setting up such other insurance to defeat its liability upon the policy, and the same is true, whether the same agent issues both policies; although consent is not indorsed upon either policy, yet, being issued with knowledge of the facts, the insurer is treated as having waived compliance and is estopped from setting up nonindorsement in defense.” This is the general tenor of our Pennsylvania authorities and it has [149] been similarly held elsewhere. “ Where a policy of insurance provided ‘ this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, if the insured now has or shall hereafter make or procure any other contract 'of insurance, whether valid or not, on property covered in whole or in part by this policy,’ held, by delivering the policy, knowing the existence of other insurance on the premises, the insurer waived the condition, though no such waiver was indorsed on the policy: ” Anderson v. Manchester Fire Assurance Co., 28 L. R. A. 609. Upon an examination of the entire case, we see no error of which the defendant has a right to complain. Judgment affirmed.