Ulysses Elgin Butter Co. v. Home Insurance , 20 Pa. Super. 320 ( 1902 )

Opinion by

Beaver, J.,

1. Some of the questions involved in this case are similar to those which have been disposed of in Ulysses Elgin Butter Co. v. Hartford Fire Ins. Co., post, p. 384. What is there said in regard to the right of a joint stock or partnership association, organized under the Act of June 2, 1874, P. L. 271, to recover upon a policy in which the word “ Limited ” was omitted will apply here.

2. As to the second question, which refers to the sufficiency of the proofs of loss, we have discussed that also in the opinion above referred to. The question was for the court: not did the plaintiff act in good faith? Did it comply with the conditions of the policy and did the proofs of loss measure up to the requirements of the policy? The time limit prescribed in the policy, within which the proofs of loss are to be furnished is not insisted upon here and, therefore, the delay of the defendant in specifying wherein the proofs of loss were deficient is not vital. . If the defendant company were insisting upon the time limit, its own delay would, of course, be counted against it; but, as that is not the case, we do not see that the delay of the general agent of the company in calling attention to the deficiencies in the proofs of loss is material. For these and the reasons more fully stated in the opinion in No. 31 of October term, 1901, the ninth, tenth, eleventh, twelfth, thirteenth and fourteenth specifications of error, all of which relate to the charge of the court below in reference to the proofs of loss, are sustained.

3. Was it incumbent upon the plaintiff to give notice of the advertisement for sale of the insured property by the sheriff, upon a judgment recovered after the issuance of the policy? The plaintiff proved notice of the judgment and execution to the agent of the defendant company, which, although objected to at the time and objection overruled and bill sealed for the defendant, is not here assigned for error. We must take it for granted, therefore, that the notice of the judgment and the execution are admitted. Was it incumbent upon the plaintiff, under the terms of the policy, to give an additional notice of the advertisement by the sheriff? It is well settled that, “ Where a provision in a policy can be reasonably taken, either in an enlarged or a restricted sense, but the limited construction is more beneficial to the insured and appropriate to the subject-matter of the contract and better effects the presumed intention to furnish the insured with indemnity, it will be adopted: ” 9 P. & L. Dig. of Dec. 14756. It is also well settled that the clause relating to foreclosure proceedings does not apply to judgments : Collins v. London Assurance Corporation, 165 Pa. 298; Stainer v. Royal Ins. Co., 13 Pa. Superior Ct. 25. We are of the opinion, therefore, that it was not necessary to give additional notice of the advertisement by the sheriff. The notice of the judgment and the execution thereon having been given, the company was bound to take notice of what followed.

4. Whether the company denied liability or not is not, in our view of the case, a material question. There is no question of waiver here. The plaintiff volunteered to furnish proofs of loss. Having done so, it was bound to furnish such as were sufficient, under the terms and conditions of the policy. Taking the testimony all together, including the expression in the letter written by the general agent of the defendant to the plaintiff that the company neither admitted nor denied liability under the policy, it may be doubted whether there was evidence upon which to found an expression of opinion by the court of the denial of liability but, in view of the immateriality of the question, we do not think there was. any error in this.

Holding as we do, that it was the duty of the court to determine the sufficiency of the proofs of loss, under the conditions of the policy, as a matter of law, and as a condition precedent to recovery, in the absence of any evidence of bad faith on the part of defendant, as to which, in view of the waiver of the time limit, as we have heretofore pointed out, there is none, we think this case must be retried. Judgment reversed and a new venire awarded.