Hebb v. Kittanning Ins. , 138 Pa. 174 ( 1890 )

OPINION,

Mb. Chief Justice Paxson:

The first point suggested by the affidavit of defence, is that, under the declaration accompanied by a copy of the policy of insurance sued upon, an affidavit of defence was not necessary. In Lycoming Ins. Co. v. Dickinson, 4 W. N. 271, this court sustained a judgment for want of an affidavit of defence in a suit brought upon an insurance policy. “ And,” as was said in Byrne v. Hayden, 124 Pa. 170, “the act of 1887, providing for filing of statement of claim, etc., was intended to have a wider scope than the old affidavit of defence law.” We do not regard this point as well taken.

Nor do we think the affidavit sufficient to prevent judgment. The most important matters contained therein are conclusions drawn by defendant from two papers viz., (a) the application, and (b) the proofs of loss. There was not a copy of either paper attached to the affidavit. It was held in Erie City v. Butler, 120 Pa. 374, that where, in an affidavit of defence, reference is made to a paper, a copy must be annexed in order that the court may judge of its legal effect. In that case, the affidavit referred to the contract between the city and the contractor, which was the subject-matter of the suit. The defendant gave his version or understanding of the contract in his affidavit. We held that he should have attached a copy, in order that the court might construe the contract. This ruling needs no vindication. It was not intended by that case to rule that a mere incidental reference to a paper or writing necessarily involves the placing of a copy on the record. But, where the paper is an important factor in the case, and the defendant attempts to set up his interpretation of it as a defence to the action, or draws therefrom alleged facts as a defence, he must attach a copy to his affidavit.

The learned judge below made the further point in regard to the application, that by the act of May 11,1881, P. L. 20, it is the duty of the insurance company to attach to the policy a copy of the application; otherwise, it is not to be received in evidence or made a part of it. In Imp. F. Ins. Co. v. Dunham, 117 Pa. 460, we sustained the court below in excluding the application because it was not attached to the policy, Mr. Justice Clabe: saying: “ No copy of the application or of the by-laws of the company was attached to the policy, as that act (1881) requires ; it constituted, therefore, no part of the policy or of the contract between the parties, and it was not receivable in evidence. The case is to be considered as if no such paper existed.” To the same effect is New Era Life Ass’n v. Musser, 120 Pa. 384. In Norristown Title Co. v. Insurance Co., 132 Pa. 391, we held that this provision in the act of 1881 was a duty imposed upon the company for the benefit of the assured, and that when they had neglected tó attach the application to the policy, they had . no standing to object to the admissson of the application because not attached. The affidavit of defence, here, makes no mention of the fact that the application was attached to the policy; the defendant could not offer it in evidence unless so attached, nor does it form any part of the contract between the parties. The affidavit omits the very thing necessary to give the paper referred to any force whatever.

It was urged, however, that the act of 1881 applies only to “policies upon the lives or property of persons within this commonwealth,” and that, as the property insured by the defendant company was located in the state of West Virginia, the rule above stated does not apply. We regard this as a narrow construction of the act. We think it was intended to produce a uniform rule of procedure, and to apply to all insurance companies incorporated by the laws of this state, and to all other corporations insuring lives or property within the state.

Both of these important papers were in tbe possession of the defendant company, and might and should have been attached to the affidavit. This court could then have judged how far they showed cause of defence to plaintiffs’ claim and sustained the construction placed upon them by the defendant company.

Judgment affirmed.

Me. Justice Mitchell noted his dissent.