Kittanning Insurance v. O'Neill

Chief Justice Mercur

delivered the opinion of the court, November 2d, 1885.

The specification of error is to the court sending out with the jury under exception, the paper containing the proofs of loss, and schedule attached.

It is true it has been ruled that in the sound discretion of the court, many papers that have been given in evidence, may be sent out with the jury. This paper however had not been given in evidence generally. It was admitted solely for the purpose of showing that proofs of loss had been furnished as required by the policy. It was therefore for the purpose of showing a condition precedent to a right of action. Being in writing the question of sufficiency for that purpose is to be decided by the court: Commonwealth Insurance Company v. Sennett, et al., 5 Wright, 161. They are not even prima facie evidence to the jury of the quantity and quality of the goods lost: Id. The insured cannot thus prove the particulars or extent of his loss by his own ex parte statement even under oath. The correctness of this ruling is affirmed in Lycoming Insurance Company v. Sehreffler, 6 Wright, 188. Nor did the fact that the statement of loss was called for by the company make it evidence for the insured: Id. Nor is the report of loss made out by the agent of the company with the affidavit of the insured appended, evidence to go to the jmy: Same v. Same, 8 Wright, 269. The correctness of excluding such evidence from the jury has been recognized in other states: Phœnix Insurance Company v. Lawrence, el al., 4 Mete., (Ky.) 9; Lafayette, Bloomington & Mississippi R. R. Co. v. Winslow, et al., 66 Ill., 219.

The statement sent out in the present case contains averments exonerating the insured from all improper conduct, and specifies the amount of his loss and damages. It was clearly improper to send such papers out with the jurors to be examined by them in their deliberations. It would be error to permit the insured to give them in evidence to the jury on the trial, aud the error was greater in permitting the jury to consider the several averments therein without their having been given in evidence.

Judgment reversed and a venire facias de novo awarded.