Stewart v. General Accident Insurance Co. of Philadelphia , 1909 Pa. Super. LEXIS 499 ( 1909 )

Opinion by

Orlady, J.,

When this case was before the court in 35 Pa. Superior Ct. 120, we held that certain evidence which had been excluded was competent, relevant, and material and should have been received, and when received, at least as to the credibility of the witnesses, would necessarily have been raised; and if the offers of evidence presented by the defendant had been received, and if the testimony had risen to the level of the offers, it would have become a question of fact for the jury. On the retrial of the case, the plaintiff recovered a verdict after the excluded evidence suggested in the earlier trial had been received, and the question was fairly submitted to the jury. On this appeal all the assignments of error present but one controlling question, namely, was there sufficient evidence to submit to the jury the question whether the defendant had waived the effect of an alleged false warranty which had been made by the plaintiff in his application for the accident policy in suit. It is admitted that the plaintiff accepted a general accident policy issued January 27, 1905, upon which is indorsed a schedule of warranties signed by him, as set out in the former report of this case, and in order to sustain his right to recover, the testimony of the plaintiff, his wife and daughter, was introduced to show that the company had full knowledge of the plaintiff’s being a member of an association called the “True Blue ” at the time the policy in suit was issued and that a full explanation had been made by him of the character of the “True Blue ” company, and of his relation to it, and further that he was then assured that it would not interfere with his contract with the defendant company in any way, it being only a sick or health policy and not an accident policy.

The accident on which this action is founded occurred on March 2, 1905; and this suit was brought on October 18, 1905. Subsequent to the happening of this accident, it was alleged by the plaintiff, that the company, after having a full knowledge of all the facts in the case, continued to treat the plaintiff as a member of the company, and gave him notices of the amount of the monthly premiums due on his policy, which were to be paid on May 1, June 1, July 1, and August 1, succeeding; that he paid the premiums to July and then withheld further payment on account of the company refusing to pay him the amount claimed on account of his accident. The relation of Boyer and Phillips, the agents of the company, was explained in detail in the testimony, so that it became purely a question of fact under proper instructions for the jury to determine whether the defendant had waived the defects in the plaintiff’s claim by continuing to receive the premium due on his policy, and that the assurances given to him by the agents of the defendant that his relation to the “True Blue ” company did not conflict with his alleged warranty to the defendant.

The company might have stood on the literal construction of its own rules, and made a successful defense when it first had knowledge of the accident to the plaintiff, but instead of doing this, it is urged that a number of visits were made to him by persons acting for the company, and representations were made to him which would determine his right to recover. The extent of their authority and the representations they made, depended upon the testimony of witnesses, and this controversy was resolved by the jury in favor of the plaintiff's contention. If, with the knowledge in its possession of every fact upon which to' avoid the policy, they misled the plaintiff for three or more months, and induced him to pay the premiums that would be due to them only upon a live policy, and never informed him that they would hot pay because the policy was voided, they have no ground to complain if they are held to be estopped from setting up such defense: Niagara Fire Ins. Co. v. Miller, 120 Pa. 504. If the company acted and promised after the action was legally barred, as if it did not intend to insist upon the limitation, and put the party to trouble, expense and anxiety in regard to his claim, they need not complain of a jury finding that they did waive it: McFarland v. Insurance Company, 134 Pa. 590. The testimony in this case was all in parole. It consisted of declarations of the agent, coupled with letters written by the company which were either denied or were open to contradictory inferences; but taking it as a whole, it was not vague, indefinite nor unsatisfactory in character, and was sufficiently convincing to warrant the jury in determining that it measured to the degree of being clear, precise and indubitable under the instructions of the court: Grier Bros. v. Assurance Company, 183 Pa. 334; Bowman v. Mutual Fire Ins. Co., 203 Pa. 150. The knowledge of an agent which will affect his principal with constructive notice must be gained by the agent while acting for the principal in the matter to which it relates; and it was reasonably urged in this case that Boyer and Phillips were not only acting in the line of their authority as agents, but were especially delegated to act for the company in this particular case.

As is said in McSparran v. Southern Mutual Ins. Co., 193 Pa. 184: Notice is knowledge or information legally equivalent to knowledge brought home to the party notified, in immediate connection with the subject to which the notice relates: Sitler v. Fire Ins. Co., 18 Pa. Superior Ct. 139. Notice to an agent when it is the duty of the agent to act upon such notice, or to communicate it to his principal, in the proper discharge of his duty as agent is notice to the principal, and applies to agents of corporations, as well as to others: Sitler v. Fire Ins. Co., No. 2, 18 Pa. Superior Ct. 148; Lightcap v. Nicola, 34 Pa. Superior Ct. 189. Where the company has knowledge of a violation of a condition in the policy and yet continues to treat the policy as in force, it cannot be permitted to set up such breaches to defeat the contract. - Such a course tends to lull the party to sleep, by the assurance that the condition of the policy has been complied with. In such a case it is an estoppel which is the true ground upon which a doctrine of waiver rests. If the policy was in force for the purpose of collecting assessments on it, and was so treated by the defendant company, it was certainly in force for the purpose of paying the loss for which the company agreed to be liable under its very terms. The condition or limitation in the policy was for the benefit of the defendant and the defendant could waive it. Whether it did in fact waive it, was a question for the jury: Bonnert v. Ins. Co., 129 Pa. 558; McFarland v. Ins. Co., 134 Pa. 590; Brumbaugh v. Home Mutual Fire Ins. Co., 20 Pa. Superior Ct. 144; Mix v. Royal Insurance Co., 169 Pa. 639.

The assignments of error are overruled and the judgment is affirmed.