Moyer v. Sun Insurance , 38 W.N.C. 367 ( 1896 )

Opinion by

Mr. Justice Fell,

The policy of insurance upon which this action was brought contained the usual stipulations with regard to furnishing proofs of loss, and the defense was based mainly upon the failure of the insured to comply with the requirements of the policy in that particular.

The plaintiff, who lived in Camden, New Jersey, had insured with the defendant company a dwelling house and stable situated in Elk county, Pennsylvania. On August 25, 1894, both buildings were entirely destroyed by fire. He at once notified the agent, and was informed by him that he had notified the proper officers of the company. On September 21, he received a letter from the adjuster, Mr. Clinger, requesting him to go to Williamsport and “ go over the loss.” In order to do this he would be obliged to travel some two hundred miles from his home, and on the 29th he wrote to the adjuster, objecting because of the expense and loss of time it would entail, and asking whether it was “ unavoidably necessary.” On October 10, the adjuster replied by letter: “ If you think it a hardship to meet me at Williamsport do not comply with the request, but comply strictly with the policies you hold.” On C'ctober 11, the plaintiff wrote to the insurance company stating (1) that he had a policy issued by it, giving its number, date and amount, and describing the property insured; (2) that the property had been totally destroyed on August 25 by a fire which originated on the property of a neighbor and had been carried by the wind to his buildings; (3) the amount of insurance in another company ; (4) the amount it would cost to replace the buildings. He further stated that he had notified the company’s agent and that their adjuster had examined the property and found the buildings entirely consumed. He then recited the substance of his letter to Mr. Clinger and continued: “ I enclose herewith copies of both his letters. The last one dated Oct. 10, ’94, is written in a mysterious manner alluding to a strict compliance of the policy, but does not explain in what way I omitted to strictly comply with the policy. I have read both policies and cannot find anything where I have failed in strictly complying with the conditions of these policies, but if there is anything further to be done I wish you would please inform me and also inform me whether it was unavoidably necessary to answer the summons of Mr. Clinger or not, and by so doing you will greatly oblige” etc. To this letter the defendant replied: “The matter is in the hands of our representatives in Pennsylvania and strict compliance with the conditions of the policy will be required:”

The plaintiff had distinct notice that the requirements of the policy would be insisted upon. Although intended for the protection of the company these requirements were conditions precedent to the right of action, and he was bound to comply with them in order to recover on the policy. On the other hand, if in good faith he had attempted to comply, it was the duty of the company to notify him of any objections to the proofs furnished. This has been repeatedly decided. In Gould v. Ins. Co., 134 Pa. 588, after a careful review of the cases it was said by Mitchell, J., “ If the insured in good faith and within the stipulated time does what he plainly intends as a compliance with the requirements of the policy, good faith equally requires that the company shall promptly notify him of their objections so as to give him the opportunity to obviate them; and mere silence may so mislead him to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver by estoppel.”

The plaintiff’s letter of October 11 was intended to furnish the information required. No other conclusion is possible. He stated what he knew about the insurance on the building, the circumstances of the fire and the extent of the loss. This he afterwards testified was all the information it was possible for him to give. He did not have such a knowledge of the buildings as to enable him to state their dimensions or the details of their construction. Referring to Mr. Clinger’s letter he said: “ The last one is written in a mysterious manner. . . . but does not state in what way I omitted to comply with the policy. I have read both policies and can’t find anything where I have failed in strictly complying with the conditions, but if there is anything further to be done I wish you would please inform me.” If in the opinion of the officers of the company this was not a substantial compliance, or if they wished further information, it was clearly their duty so to inform him.

The insured if required was to furnish a certificate of a magistrate or notary. He was not required to furnish one. It cannot be said that the notice to comply with the conditions of the policy was notice to furnish the certificate. The company could insist upon the certificate, but the insured was under no duty to furnish it unless required to do so. The arbitration clause was similar to, if not identical with, that considered in Boyle v. Ins. Co., 169 Pa. 349, in the opinion in which case it was said by Williams, J.: “ When one clause in a fire insurance policy provides that in case of loss an estimate shall be made by the insured and the company, and another clause provides that in case they differ the subject is to be referred to appraisers selected as therein provided, the remedies are successive, and neither party can insist upon the second who has not shown himself willing and ready to enter upon the first.”

' The defendant company, by letter of November 3, distinctly denies its liability on the policy, basing its refusal to pay upon the failure of the plaintiff to furnish proofs of loss within the time specified. As the testimony was undisputed, and nearly all of it, in fact all that was material in making out the plaintiff’s case, was in writing, we see no error in the peremptory direction given by the learned judge.

The judgment is affirmed.