Susquehanna Mutual Fire Insurance v. Cusick , 1885 Pa. LEXIS 499 ( 1885 )

Mr. Justice Paxson

delivered the opinion of the court,

Mary Cusick, plaintiff below, an ignorant woman, unable to read or write, took out a policy of insurance in the defendant company, on her dwelling-house in the city of Scranton. The policy contains this clause: “ The application, survey, place or description of the property herein insured, referred to in this policy, shall be considered a part of this contract, and a warranty by the insured.”

There was an admitted misdescription of the property. The policy and the plan attached to the application, call for a house 18x24- feet, with wash house attached 8x12 feet. In point of fact the house had also an attachment 20x21 feet, which was a part of the house and formed one dwelling. The fire occurred in this attachment, and the entire structure was destroyed.

If this were all, the plaintiff would not be entitled to recover. But it is equally clear that the mistake in the description was the blunder of Wright Wells, the company’s agent, who made' out the application for Mrs. Cusick to sign, and who prepared the description of the insured premises on the ground, and made the draft or plan attached to the application. This appears from his own testimony taken at the trial below. Indeed, it was only when confronted with the plan, while upon examination, that he saw his mistake, and acknowledged it. It was not pretended that the plaintiff had anything to do with the plan or description except signing tbe application with her mark, upon the assurance that it was all right.

On the back of the application were certain interrogatories to “be answered fully and definitely by this agent, to insure the acceptance of the risk.” These queries were answered by the agent; at least the answers were in his handwriting, although not signed. To the question, “ Are you personally acquainted with the applicant and risk?” he answered, “ Yes.” To the question, “Is it, in 3rour judgment, such a risk as should be accepted b3T the company?” he answered, “Yes.” It was also proved that Wells was the agent of the company for taking applications for insurance, transmitting them to the office of the compa^r, and collecting premiums. It thus appears that the agent was acting within the scope of his powers, and the case comes directly within the principle ruled in Eiienberger v. Protective Mutual Fire Ins. Co., 8 Norris, 464, where it was held, in an elaborate and carefully prepared opinion by our brother Tbunkey, that: “ The fraud or mistake of a knavish or blundering agent, done within the scope of the powers given him by an insurance company, will not enable the latter to avoid a policy to the injury of the insured, who innocently became a party to the contract.”

In the case cited the agent committed a fraud by setting down false answers in the application; in the case in hand the agent committed a blunder by incorrectly describing the property insured. In neither was the act complained of in any proper sense the act of the insured ; in neither can the company be permitted to cast upon the insured the consequences of the crime or blunder of its own agent. The cases cannot be distinguished in principle.

So much is clear. The confusion of the case arises out of the manner in which it was submitted to the jury. There'was technical error in that portion of the charge embraced in the first specification, wherein the learned judge said: “You have no evidence that she (the plaintiff) knew of the contents of this paper. Well, if she did not know of the contents of this paper, then of course she is not bound by it; if the agenf of the company made any mistake in describing the ground plan or size of her property, or placed therein any statements not made by her, then of course she is not bound by that.”

The latter part of this instruction as applied to the facts of this case was not error, and had the first part been omitted, as it might well have been, there would have been no trouble. But the first part as an abstract proposition is certainty erroneous. It was held in Weller’s Appeal, 7 Out., 594, that “The fact that O. was an illiterate German and understood English imperfectly, was immaterial, because he was not obliged to sign tbe instrument unless he understood it, but having signed, without asking to have it read to him, he was bound by it.” See also Insurance Co. v. Swank, 6 Out. 17; and Insurance Go. v. Fromm, 4 Id., 347. We will not, however, reverse lor this error. It could have done the company no harm; on this branch of the case they have no defence.

The only other question that requires notice relates to the proofs of loss. It may be conceded that the proofs of loss were informal. At the same time it must be borne in mind that the subject of loss consisted of a single item, viz., a frame dwelling house, and that it was totally destroyed; in other words, a total loss under the policy. Elaborate proofs of loss were not necessary under such circumstances. That the proofs of loss were at least intended to be a substantial compliance with the terms of the policy there can be no doubt. Had they been regarded as unsatisfactory, they should have been returned by the company to the insured, the defects pointed out, and a call made for more specific proofs. It was in evidence that one of the company’s officers visited the premises a few days after the proofs of loss were sent, with a view of making a settlement, and that he made an offer of about 8600 for that purpose. He testified that he told the insured that her proofs were defective, and pointed out to her in what respect they were defective. Upon this point, however, there was a conflict of evidence, and the case was submitted to the jury.

Upon the whole, while we are of opinion that this is a very ragged record, we think the case is right upon the merits, and we do not see any errors of sufficient gravity to compel us to reverse.

Judgment affirmed.