Edelson v. Norwich Union Fire Insurance

Opinion by Trexler, J., This is a claim of loss by fire of property insured by the defendant company. The property consisted of plumber’s stock, tools and fixtures. At the trial plaintiff contended that the loss being entire, proof of it was not required, citing Lycoming County Mutual Ins. Co. v. Schollenberger, 44 Pa. 259, and the question as to whether there had been a total loss was submitted to the jury who found for the defendant company. As was said by the learned trial judge in refusing a new trial, this was giving the plaintiff a chance when he should have had none for as pointed out by Judge Morrison in Lapcevic v. Lebanon Mutual Ins. Co., 40 Pa. Superior Ct. 294, the case of Lycoming County Mutual Ins. Co. v. Schollenberger, supra, and those following it apply to total destruction of a building and not of a stock of merchandise. The question of entire loss was the only one submitted to the jury. The principal question raised upon appeal is whether the company waived the furnishing of the proof of loss. Two facts were established beyond dispute at the trial, (1) that no proof of loss was served upon the local agent of the company within twenty days of the date of the fire as provided by the Act of June 27, 1883, P. L. 165, and, (2) that no proof of loss was given to the company as provided by the policy within sixty days after the date of the fire. The furnishing of the proofs of loss is a condition precedent to the right to recover and the failure so to do necessarily defeats the plaintiff unless he can. show waiver of this condition of the policy by the company, or some one acting with authority in its behalf, evidenced by express words or acts implying a waiver. The act above- referred to provides that the conditions of the policy as to notice of loss and the furnishing of preliminary proofs shall be deemed to have been complied with if the insured shall furnish the company at its general office or to the agent of the company who countersigned the policy, the preliminary [384] proofs within twenty days from the date of the fire. There is one of two methods which the insured, sustaining loss may use. He may submit the proof of loss to the agent who countersigned the policy or to the company at its general office. As was said by Brother Head in Hottner v. Aachen Fire Insurance Co., 31 Pa. Superior Ct. 461, “In the present case the insured did not comply with the requirements of his policy, either in the method prescribed by the act of 1883, or in any other way. He does not claim to have done so. He stands on the proposition that he was excused from doing so by the local agent, whose authority, in this respect, is sought to be drawn from the act of 1883. We cannot so construe the act. The plaintiff must stand on the contract he voluntarily made, and it is binding on us as it is on him. He has not discharged the obligations it imposed on him. He has not shown any release from such obligations by the company or anyone having authority to act for it in that behalf.” See also Kness v. Anchor Fire Ins. Co., 31 Pa. Superior Ct. 521, and Dunn v. Farmers’ Fire Ins. Co., 34 Pa. Superior Ct. 245. The only explanation of the acts of the plaintiff is his plain neglect to do what the law required him to do. He waited until thirty days after the fire to give the local agent who countersigned the policy what he says is a proof of loss. The -document furnished is not printed in his paper-book. Following appellant’s line, of argument the only waiver that could possibly be inferred must be found in the retention of the proofs of loss by the agent or the assertion claimed to have been made by the agent that the loss would not be paid because the premium had not been paid. But the plaintiff was not lulled into any false feeling of security because he had reason to believe that the company had knowledge of and was satisfied with the proofs of loss submitted or that he was relieved from furnishing all further proofs of loss by any act of the agent or by the denial of liability on other grounds. Sixty-three days after the fire [385] he submitted proofs of loss although too late to meet the requirements of the policy. As was said by Judge Beaver in Ulysees Elgin Butter Co. v. Hartford Fire Ins. Co., 20 Pa. Superior Ct. 384, “as we view this case the questions of the plaintiff’s being relieved from the duty of furnishing a proof of loss or the waiver on the part of the defendant of the necessity for the furnishing of the samé do not arise, for the reason that the plaintiff did not avail itself of any alleged waiver and voluntarily submitted proofs of loss.” We think the plaintiff has failed to show any waiver on the part of the company or any act constituting a waiver, or that he was misled in any way. The assignments of error not covered by the above discussion are. as to the admission of testimony. One is the refusal of the trial judge to admit a letter of the local agent addressed to the insured after proofs of loss had been submitted, in which letter notice was given of the cancellation of the policy, the offer being made to show a denial of liability by the insurer. The court was right in overruling the offer. A denial of liability by the company may excuse the filing of proofs of loss but after the proofs of loss have been filed there remains no reason for the offering of such evidence. The other assignment is as to the refusal of the court to allow the plaintiff to use a memorandum containing a list of the articles destroyed. In view of the position we have taken that plaintiff is not entitled to recover anything, this assignment is of no importance. We have covered all the questions raised. The whole of plaintiff’s case may be summarized in the statement that the plaintiff neglected to abide by the contract of insurance in regard to the proofs of loss and now seeks to excuse his nonperformance by a waiver on the part of the company. This, as stated before, he has failed to do. Judgment affirmed.