Carey v. Allemania Fire Insurance , 171 Pa. 204 ( 1895 )

Opinion by

Mr. Justice McCollum,

The insurance company rests its defense to this action on two grounds: The first ground is that the proofs of loss were not furnished within the time allowed by the policy, and the second ground is that when the policy was issued the plaintiff was not the stile and unconditional owner of the building insured. The policy required that the proofs of loss be furnished to the insurer within sixty days after the fire, while tho fact is that they were not furnished until ninety-six days after that time. Compliance with this requirement of the policy was a condition precedent to suit upon it, and the failure to furnish the proofs within the stipulated time is, standing by itself and unexplained, a sufficient answer to the plaintiff’s demand. But it is alleged that the company waived the stipulation in regard to the proofs in what was said and done by its agent and adjuster in the interviews he had with Mr. and Mrs. Carey soon after the fire. It appeared that on the 12th of June, 1893, he obtained from the plaintiff a written statement under oath in relation to the fire, the size of the house, the nature of the business carried on in it, and the title to the lot on which it was erected ; and that two days thereafter he procured from him a list, prepared by his wife, of the articles destroyed, together with an estimate of the value of each of them. The statement and list were furnished to the adjuster on his request, and after they were delivered to him he said in substance that there was nothing more for the insured to do. Neither the plaintiff nor his wife saw or heard from him again before the time allowed by the policy for furnishing the proofs expired.

The learned court below instructed the jury that they might find from the evidence of what was said and done by the agent in the interviews referred to that the company waived or was estopped from asserting its right to stand upon the stipulation in the policy in regard to proofs of loss. The company denies the alleged waiver and estoppel, and insists that there is no evidence in the case which warrants an inference of either, but our examination of the evidence has failed to convince us that the court erred in submitting these questions to the jury.

The second ground of defense to the action is not tenable, and the contention based upon it is sufficiently answered in the charge of the learned judge and by the decision of this court in Imperial Fire Insurance Company v. Dunham, 117 Pa. 460.

Before this suit was brought the plaintiff was notified that the company denied its liability on the grounds above stated and considered. The jury, however, were instructed that if the company received formal proof of the loss on the 24th of August—ninety-six days after the fire—and did not object until October that it was furnished too late, they might conclude that the sixty days limit was waived. The instruction was broad enough to,allow the jury to find a waiver from the single circumstance mentioned in it, and in this case they may have based their verdict upon it. If the plaintiff lost his right to maintain an action on the policy by his neglect to furnish the proof of loss within the time stipulated in it something more was required to reinvest him with that light than the delay referred to. It is sufficient on this point to cite Beatty v. Lycoming County Insurance Co., 66 Pa. 9.

We discover nothing else in the case which calls for a reversal ■or requires discussion. We therefore sustain the seventh specification and overrule the others.

Judgment reversed and venire facias de novo awarded.