Everett v. London etc. Ins. , 28 W.N.C. 203 ( 1891 )

Opinion,

Mr. Justice Mitchell :

The first and second assignments of error raise the same question as to the effect of the entry of a judgment of non-pros, under the rule of court, and the subsequent action of the court in striking it off, that was raised and decided in Everett v. Niagara Ins. Co., opinion filed herewith, ante, 329, and for the reasons there given the assignments are not sustained.

This case, like that, comes to us as an alias summons, but it differs from that in the fact that the original on which the alias was based, was not issued within the stipulated period of limitation.

The defence was the violation of three separate conditions of the policy: First, over-insurance beyond the amount consented to by the defendant; secondly, failure to ascertain the amount of loss by arbitration before suit; and thirdly, failure to bring suit within the period limited.

The court below instructed the jury that under the evidence the second condition did not apply, and the third and fourth assignments relate to this instruction. The language of the learned judge can certainly not be sustained. “If this was the agreement,” he says, “if plaintiff proposed to accept five thous- and dollars and the adjusters agreed that that -was the amount of damage sustained, .... there was no necessity for having an award of arbitrators to dispose of and fix that which the parties themselves had agreed and fixed among themselves; so that, in the opinion of the court, that clause of the policy does not stand in the way of the plaintiff’s right to recover.” But the evidence fails to show that the adjusters had any authority to act for this defendant. Good, the only one examined, says distinctly that he did not represent the defendant, and as to Clough, the other adjuster, “ I don’t know that he represented them more than to write up the proofs of loss.” Moreover, the papers prepared by the so-called adjusters were ordinary proofs of loss, prepared for presentation to the companies; and by the testimony of Good there was neither any agreement to pay nor any authority to make such agreement, even for the companies the adjusters represented. It was the duty of the insured, not of the insurers, to prepare the proofs of loss; and, without express authority shown, no action in preparing them would in any way bind the insurers. As to this defendant, there was no evidence of any authority at all. There were six companies concerned in this loss, and the adjusters represented at least four of them, and this fact probably led the learned judge into the error. It was in evidence, however, that a copy of the proofs of loss was received by this defendant, and retained, so far as appears, without objection. Such retention was evidence of acceptance by the company, and, as the fact was uncontradicted, the direction of the learned judge that the condition as to arbitration did not apply, might be sustained on this ground. As he well said, there was no need of arbitration to fix that which the parties had fixed between themselves.

The fifth, sixth, and seventh assignments of error are to the submission to the jury of the question of waiver by the conduct of the company, of the conditions as to over-insurance and as to time of bringing suit. In regard to the former, the learned judge said: “There may not be very great difficulty for the jury to find that there was a waiver of that condition when the representatives of these companies met for the purpose of adjusting the loss. The agent of this company was aware that insurance had been made to exceed the $4,500.” Unfortunately for this instruction, the evidence, as already noted, fails to show any agency or authority for this company in either of the adjusters. It did appear, however, that the proofs of loss received by defendant contained a schedule of the different companies insuring, the amounts of their policies, and the proportionate payment due from each on the basis of an adjusted loss of five thousand dollars. On the face of this paper, defendant was informed that the amount of insurance on the goods greatly exceeded the limit allowed by its policy. The schedule was also notice that plaintiff was claiming only a proportion of his insurance from the other companies, in the expectation that defendant would also pay its quota. Silence as to the over-insurance, under such circumstances, might mislead the plaintiff into a settlement to his disadvantage with the other companies, and, if it did so, would justify the jury in finding a waiver by estoppel. But the question was not submitted to the jury on this basis, and the ground on which it was submitted cannot bo sustained for want of evidence.

In regard to the time of bringing suit, the failure of the evidence of waiver is even more marked. The policy stipulated that no suit should be sustainable unless commenced within three months next after the loss, and the original writ in this action was not issued until eleven months after. By the terms of the policy it was too late, and the judge correctly so instructed the jury. But he also instructed them that if the defendant, after the stipulated time had expired, had been willing to pay, although denying its liability, they might find a waiver. In this there were two serious errors. The acts to constitute a waiver by implication must be done during the running of the period of limitation, not after it has expired and the rights of the parties have become fixed. In Beatty v. Insurance Co., 66 Pa. 9, it was said by Shabswood, J.: “ To constitute a waiver, there should be shown some official act or declaration by the company during the currency of the time, dispensing with it, something from which the assured might reasonably infer that the underwriters did not mean to insist upon it.....After the thirty days had expired without any statement, nothing but the express agreement of the company could renew or revivify the contract.” See, also, Gould v. Insurance Co., 134 Pa. 570, and Lantz v. Insurance Co., 139 Pa. 546. In National Ins. Co. v. Brown, 128 Pa. 386, it was said by out Bi-other McOoblttm : “ That it (the limitation against bringing suit) may be defeated by conduct which constitutes an estoppel or waiver.....is not denied, but there must be evidence of conduct from which an intention to waive it can be fairly inferred, or of an act which ought in equity to estop the company from relying upon it.” Applying this test to the present case, the evidence submitted by the learned judge to the jury was, first, the agreement of the adjusters; and, secondly, certain letters written by the company to its agent in Lock Haven. As to the first, it is disposed of by the fact that no authority from this company to the adjusters was shown. As to the second, the letters were from the company, giving instructions to its own agent. They expressly denied liability, but informed the agent that to avoid litigation the company would settle under certain conditions. These letters were not addressed to the plaintiff; nor is there any evidence that their contents were made known to him, or that any action of his was based on them. There was no element of estoppel in them, even if they had been written during the three months of the limitation, and the weight of the evidence, in the opinion of the court below, was that they were written after the limitation had expired. As evidence of intention to waive the limitation they were only conditional, and there is no evidence the conditions were complied with, and they were only instructions to their own agent, clearly revocable at any time prior to being made known to and acted upon by the plaintiff. In any view, they were entirely insufficient to permit the jury to find a waiver from them.

The eighth assignment must also be sustained. The evidence of Mary Sherlock as to the value of the goods was inadmissible. If the receipt and retention of the proofs of loss without objection was to be regarded as an acquiescence and agreement as-to the amount, then the testimony as to the value of the goods was irrelevant; and, if not to be so regarded, then the policy provided a specific way in which the value should be settled before suit brought.

It seems to be doubtful if the plaintiff can present evidence to entitle him to go to the jury on the question of waiver of the time of bringing suit, but as one of the so-called adjusters, Clough, was not examined, it is not clear that plaintiff may not be able to close the gap by his testimony.

Judgment reversed, and venire de novo awarded»