Mix v. Royal Insurance , 169 Pa. 639 ( 1895 )

Opinion by

Mr. Justice Green,

The first five assignments raise practically but one question, and that is, the effect of the words, “in trust for Warren Mix,” in the plaintiff’s deed, upon her right to recover on the policy in suit. ■ It was alleged and proved by the plaintiff by the testimony of two witnesses, other than herself, that these words were not in the deed when it was executed and delivered. One of the witnesses was the grantor in the deed and the other the scrivener who wrote it. The question raised by the proof was not a question of reformation of the deed, it -was simply a question of spoliation. Of course the parties to a deed or either of them may prove the fact of spoliation without their knowledge or consent, and if the evidence is sufficient to establish the fact, the deed is the same as if the spoliation had never been committed. The proof of spoliation in this case is ample without considering the testimony of the plaintiff. It would have been error to withhold it from the jury or to depreciate its sufficiency by comparing it with the kind of testimony which is required in the cases where attempts are made to reform and change written instruments by parol testimony.

There is no merit in the sixth assignment. The title to the real estate was not at issue in this ease. No judgment that could be rendered would in any manner affect the right of persons claiming title in Warren Mix. It was an action to recover money due upon a policy of fire insurance made with Cora Mix, not with her husband. He had no interest in it. If she recovers the money is hers, if she fails it is not his. He could get nothing in anjr event. She was clearly a competent witness.

On the question of waiver the proof was ample. Two witnesses swore positively to the declarations of the agent that it was not necessary to make out proofs of loss. It is true he denies using the language attributed to him, but that raises only a question of the credibility of the witnesses, which is exclusively for the jury. He was the adjuster of the plaintiff and was sent as a special agent to adjust this loss and effect a settlement of the claim. He was therefore clothed with the full powers of the company for that purpose. He refused to settle because he had doubts as to the cause of the fire. This was a refusal at the time to pay anything.

On the question of waiver of the proofs of loss, it has been so many times decided that, although a policy of insurance contains a stipulation, that nothing less than a written agreement indorsed on the policy will suffice to establish a waiver, yet it is admissible to show by parol testimony a waiver by acts in pais, that it is scarcely necessary to refer to the authorities. They have been collected in McFarland v. The Ins. Co., 134 Pa. 590, and Gould v. Ins. Co., 134 Pa. 570. In the case of State Ins. Co. v. Todd, 83 Pa. 272, Gordon, J., referring to the case of Ins. Co. v. Stauffer, 9 Cas. 397, said, “ But in the opinion .in that case, delivered by Strong, J., it is held that it is competent for insurers to waive performance of a formal condition introduced into a policy solely for their own benefit. Also that such waiver need not be express, but may be inferred from the acts of the insurers, evidencing a recognition of their liability, or even from their denial of obligation exclusively for other reasons.” In this case as in the present the contention was that the defendant company was not liable because the proofs of loss were not furnished within the designated time, and we held the condition was waived on account of the interference of the secretary of the company with the adjustment.

In the present case the testimony of two witnesses is direct and positive that the special agent sent to adjust the claim expressly told the plaintiff and her husband that it was not necessary to make out the proofs of loss and swear to them and send them in. This was shortly after the fire and after plaintiff had notified the company of the loss. It is true the special agent denied this but there were two witnesses against one, and one of them was entirely disinterested; and, in any event, the testimony raised only a question of credibility which was exclusively for the jury, and the jury gave credence to the plaintiff’s witnesses.

The testimony of Taylor sustains the comments of the court complained of in the seventh and eighth assignments, and we do not think there was any error in the answers of the court to the second and third points of the defendant as expressed in the ninth and tenth assignments.

Judgment affirmed.