Jacoby v. Westchester Fire Insurance , 1899 Pa. Super. LEXIS 256 ( 1899 )

Opinion by

Beeber, J.,

The court in which this case was tried has the following rule: “ If the plaintiff shall file with his declaration or statement, separate and apart from his declaration or statement, a specific averment of facts sufficient to support his claims, verified by affidavit, and serve a copy thereof on the defendant or his counsel of record, such items of claim and material averments of facts as are not denied by the defendant, by affidavit filed with or before plea pleaded, shall be taken as admitted.” "When the plaintiffs filed their statement they also filed with it, and served a copy on counsel of record for defendant, a specific averment of facts as allowed by the above rule of court. In this specific averment they alleged that the property insured was destroyed by fire on a certain date, that immediate notice of the loss in writing was given to the defendant, that they, within sixty days after the fire, made a statement to the defendant giving all the information' which the policy required, that on the 23d day of June, 1897, the agent of the defendant duly authorized to act met with the plaintiffs and adjusted, ascertained and agreed that a certain sum was due and payable by the defendant, that on this date the notice required had been given to the defendant, the ascertainment and estimate had been made by defendant’s agent, duly authorized to ascertain, estimate and adjust said loss, satisfactory proof of loss had been received by defendant and all things required by the policy had been done by the plaintiffs.

The defendant in its affidavit of defense, which it filed also as its denial required by the above rule, alleged that the fire which had consumed the insured property “ was caused by the acts of the plaintiffs who wilfully and fraudulently set fire to the insured property ” for the purpose of defrauding the defendant, that the plaintiffs “by false and fraudulent returns and statements of the value of the property ” insured, and by wilfully, falsely and fraudulently concealing from the defendant the fact that the property insured was set on fire by them, fraudulently induced the defendant to adjust the loss and agree on a certain sum as due and payable to plaintiffs by defendant, and that defendant did not know of the said fraudulent and false returns and statements of the value of the insured property, nor that the property was set on fire by the fraudulent act of the plaintiffs for the purpose of defrauding the defendant until after the adjustment of the loss by the defendant.

From this statement of the pleadings it is clear that there were only two issues of fact to be tried, first, whether or not plaintiffs had fraudulently set fire to their own property for the purpose of defrauding the defendant, and second, whether or not the defendant had been induced to agree upon the adjustment of the loss and upon the payment of a certain amount by the false and fraudulent returns and statements by the plaintiffs of the value of the insured properly. All the other facts necessary to a recovery had been fully and explicitly set forth by the plaintiffs in their specific averment of facts, and as they had not been denied by the defendant they must be taken, under the above rule of court, as admitted. The plaintiffs were no longer bound to prove any of the facts alleged in their averment which had not been denied. The court and jury were compelled to assume that all these material and undenied facts in the averment were admitted to be true by the defendant, and to confine the contest to these two issues of fact: Neely v. Bair, 144 Pa. 250; Whitehead v. School District, 145 Pa. 418.

The first four assignments of error are to the action of the court in reference to the proofs of loss which were executed two days after the adjustment of the loss and the ascertainment of the amount due by the defendant. Bearing in mind what were the two issues of fact which the pleadings raised we do not think it can be successfully urged that the court below erred in this respect. Having been executed two days after the adjustment and ascertainment of the amount due, they can hardly be said in themselves to have induced the defendant to adjust and ascertain the amount due. It is earnestly urged that because they contained false statements as to the origin of the fire and as to the incumbrances on the property it was error for the court to say that nothing in the proofs of loss prevented recovering. But it must be remembered that the court in its charge to the jury had said plainly and emphatically that if they were satisfied by the preponderance of the evidence that plaintiffs had fired their own property there could be no recovery. Having heard this part of the charge the jury could not have supposed that the court meant, when it said that nothing in the proofs of loss prevented recovery, that the fact, if they found it to be a fact, that plaintiffs fired their property did not prevent a recovery. What was plainly meant and what the language clearly shows was that a false statement as to the origin of the fire made two days after the company had adjusted the loss should not prevent recovery. As to the mistaken or false statement in the proofs of loss in reference to the incumbrances, much could be said in favor of a view different from that entertained by the court below if it had appeared that the proofs of loss had in any way induced the adjustment. The policy required the proofs of loss to state all incumbrances on the insured property. This clause does not seem to have been called to the trial judge’s attention when about to make the ruling complained of. What he evidently had before him was that part of the language of the policy in reference to the property becoming incumbered by chattel mortgage, and his construction of that language is unexceptionable. But the case does not require us to decide what the word “ incumbrance ” included. The defendant had an undoubted power to waive the proofs of loss. This can be done by acts as well as by agreement. Sometimes it is done by notifying the insured, in case of total loss, that the insurance would be paid in full: Stauffer v. Manheim Mut. Fire Ins. Co., 150 Pa. 531; sometimes by acts indicating a recognition of liability, or repudiating liability for other reasons: Lebanon Mut. Fire Ins. Co. v. Erb, 112 Pa. 149; sometimes by some authorized person going to the scene of the fire, appointing appraisers as required by the terms of the policy, and promising payment on the finding of the appraisers: McGonigle v. Susquehanna Mut. Fire Ins. Co., 168 Pa. 1.

Where the pleadings in a case raise only two questions, neither one of which is as to the sufficiency or verity of the allegations in the proofs of loss, it is important to enforce the rule that no evidence shall be heard to defeat the recovery which the issues of fact do not require: Latimore v. Dwelling House Ins. Co., 153 Pa. 324. In the case now before us there was no question raised in the pleadings as to the form or truth of the proofs of loss. Had there been, the plaintiffs would have had an opportunity to show that the false statement as to incumbrances was mistakenly, inadvertently or accidentally made, or that it was not fraudulently, wilfully and knowingly made with a view to defraud the defendant, in which case the proofs of loss would not have prevented recovery: Franklin Fire Ins. Co. v. Updegraff, 43 Pa. 350; Cumberland Valley Mut. Protection Co. v. Mitchell, 48 Pa. 374. In view of the pleadings and issues in this case we think there was no error committed by the court in the charge to the jury as complained of in the first four assignments of error, and they are therefore overruled.

The fifth assignment of error is to the admission in evidence of the affidavit of defense which was offered by the plaintiffs to show that the defendant adjusted the loss payable by it at a certain amount. We think this was properly admitted. The plaintiffs had stated in their averment of facts that defendant, by an agent duly authorized to act for it in the premises, had met with the plaintiffs and agreed that defendant’s share of the loss was a certain amount. To this averment defendant replied that when it agreed to the amount of the loss for which it was liable it did not know that plaintiffs had fired their own property, and further that it was induced to agree to this amount by false and fraudulent statements and estimates as to the value of the property insured. It did not intimate anywhere that its agent was not authorized to adjust losses. In fact its affidavit was a confession of authority by its agent to do a certain act, and a plea of avoidance of the effect of the act because of certain frauds.- It made no difference in legal effect which one of the defendant’s many agents made this agreement, nor what was his name, nor who was present. Plaintiffs had confronted defendant with the bald averment that it was done by an agent duly authorized. If defendant had intended to deny that it was done by its agent, or that he was authorized to do it, it should have said so. The plaintiffs then would have known that they would be required to prove the agency and the authority. Bqt when they found defendant did not deny either, but rested on its right to repudiate the adjustment because of plaintiffs’ fraud, they had a right to assume they would not be required to prove agency: Neely v. Bair, 144 Pa. 250. This assignment is overruled.

The seventh, eighth, ninth, tenth, eleventh and twelfth assignments are to the exclusion by the court of certain offers of evidence. That part of the offer, embraced in the seventh assignment, to prove the conversations of the witness with the insurance agent Zeigler, out of the presence of the plaintiffs, was clearly inadmissible, nor could it be made admissible by offering to follow it up by proof of what Zeigler did afterwards in procuring the assignment to himself of the policies in which he was interested, and in concealing from defendant, when the adjustment was made, his knowledge of the charge that plaintiffs had set fire to the insured property. The witness by whom it offered to prove these conversations cannot be regarded as a conspirator whose acts and conversations under certain circumstances may become evidence against all in the conspiracy. What Zeigler did with the plaintiffs after he received the information, and whether he informed the defendant, at or before the time of the adjustment, of his knowledge of the charge that plaintiffs had set fire to the property, would have been relevant and admissible had the offer been to prove this alone, but to join with it an offer to prove what was clearly inadmissible rendered the whole offer inadmissible. It was not the duty of the court to separate the admissible from the inadmissible and admit the former. Moreover, the defendant cannot complain for all of the admissible part of its offer was subsequently put in evidence.

Had the court finally ruled as the eighth specification of error would seem to indicate, there might be room for alleging error, but an examination of the evidence immediately following shows that defendant was not satisfied with the ruling upon its offer embraced in this assignment for it immediately renewed it in effect and it was admitted. The witness was allowed to testify in full as to whether Zeigler had informed him at the time of the adjustment, of the charge having been made that plaintiffs had set fire to the property, and of the fact that an assignment of certain policies had been made to Zeigler. The admission of this evidence cured any possible error in ejecting the offer embraced in this assignment.

By the ninth assignment of error it appears that a witness was asked by the court whether certain doors of the building could be opened from the outside to which he replied that they could not; that he was particular in making them tight, and especially on that night. Counsel for defendant, whose witness he was, then asked him his reason for being so particular on that night, which question was excluded by the court upon objection. It was then further offered by defendant to prove by this witness that when he and another person left the building that night each said to the other “ take a look at the factory to-night, for this is the last time you will see it,” for the purpose of showing the suspicions of these two parties. This offer was also excluded. In this we think there was no error. It is too plain for argument that two persons cannot, by communicating their suspicions to each other, furnish evidence to convict third parties of a crime. Many witnesses had described the condition of the property for a few days before the fire which was entitled to whatever weight the jury chose to give, but we have been shown no authority and we can find none ourselves which requires the admission of what different persons told each other as to their suspicions.

The tenth assignment of error shows an offer to prove that shortly after the fire one of the plaintiffs told the witness and another person that they were talking too much about the fire and if they did not stop it he would make trouble, and that the witness should keep away from one Robbins who was talking too much about the fire, for the purpose of showing fraud on the part of the plaintiffs and a fraudulent attempt to close the mouths of witnesses and prevent investigation. The court excluded this because there was no effort to show what this talk was of which complaint had been made. We do not think the offer would sustain the purpose for which it was made. So long as we do not know what it was that these men were saying about plaintiffs we cannot say that plaintiffs’ effort to stop their talking was evidence of fraud or of an attempt to close the mouths of witnesses or to prevent investigation. It was not charged that the plaintiffs tried to induce these witnesses not to testify on the trial. Under these circumstances it was not error to exclude this offer.

The eleventh assignment of error was to the refusal of the court to allow the defendant to show by a witness, who had been in the employ of the plaintiffs, that on Saturday night when he visited the factory he found that part of a kindling pile had been removed, which part, on his return on Monday, he found had been replaced, and that on Saturday night at this same visit he noticed the smell of turpentine. This was offered to show, or as tending to show, the fraudulent burning of the property of plaintiffs. We cannot see that it does either. The causal connection between removing and replacing a pile of kindling wood and the fraudulent burning of insured property is not apparent, especially when there is an interval of two days between the two occurrences. In any event the defendant cannot complain because it was fully shown by the evidence on both sides that one of the plaintiffs and his bookkeeper visited the premises after midnight within an hour or two of the fire under circumstances to say the least unusual. The spilling of the turpentine and its consequent smell were also admitted by tbe plaintiffs, so that tbe defendant, in spite of tbe refusal of tbe offer embraced in tbis assignment, bad tbe benefit of everthing included in tbis offer. Indeed tbe proof of wbat it alleged to be tbe fact was finally stronger by other testimony offered by itself and by plaintiffs, for, as we bave said, one of tbe plaintiffs and bis bookkeeper were clearly shown to have been on tbe premises one or two hours before the • fire, which we think much more likely to convince tbe jury of tbe truth of defendant’s contention than its offered proof of the presence of some one, not known to any one, on the premises during tbe Sunday preceding tbe Monday night in which tbe fire occurred. Tbis assignment is overruled.

Tbe twelfth assignment was abandoned at tbe argument. Tbe sixth assignment becomes unimportant in view of tbe fact that defendant offered the map in evidence which was received. If it was error to allow tbe policy to be offered in evidence without offering tbe map with it, it was cured by tbe subsequent receipt of tbe map in evidence. This assignment is also overruled.

Judgment affirmed.