Whitmore v. Dwelling House Ins.

Opinion by

Me. Justice Steeeett,

There is no question as to the validity of the policy in suit, nor that the property insured was totally destroyed by fire on April 15, 1888, during the life of the policy. It was clearly shown, by undisputed evidence, that the value of the house and personal property destroyed considerably exceeded the amount for which they were respectively insured. The right of plaintiff to recover was resisted on two grounds :

1. That he failed to comply with the provision of the policy requiring him, within thirty days after the fire, to furnish the company with the statement of proof of loss therein specified.

2. That the house in question was “on ground not owned by the insured in fee-simple,” and his interest therein was “ other than unconditional and sole ownership.”

Considerable testimony, bearing more or less directly on each of these propositions, was introduced and submitted to the jury, under instructions, which constitute the subjects of complaint in several of the specifications of error.

It was clearly shown that, within a day or two after the fire, notice of the total destruction of the house and contents was given to the company. Testimonj1- on behalf of plaintiff tended to prove that, within ten days thereafter, he prepared an itemized statement of his loss, inclosed it in an envelope, properly stamped, and addressed to the “ Dwelling House Insurance Company, Boston, Massachusetts,” and placed it in the post office, at Carbondale, Pa.; that, before mailing the package, he showed it to the company’s local agent at Carbondale, informed him that it was a statement of his loss, which .he was about forwarding by mail to the company, etc., and, in reply to the inquiry whether that was right the agent assented. These matters were all testified to in detail by the plaintiff himself, and he was corroborated therein by a disinterested witness.

The testimony also tended to prove that, after waiting, in vain, several weeks for a reply from the company, plaintiff caused to be prepared and mailed to its home address, as before, a second itemized statement of loss. Pursuant to notice to produce both statements, etc., at the trial, the company brought into court the last mentioned paper, and denied receiving the other. In connection with the evidence tending to prove the preparation and mailing of the first statement, plaintiff offered in evidence the second statement or proof of loss, but being objected to by the company, as incompetent and irrelevant, because not furnished within thirty days after the fire, it was, for that reason, excluded.

For the purpose of rebutting the inference that might be drawn from mailing the first statement within the thirty days, the company undertook to prove, by Mr. Melchert, one of its employees, that he had charge of its mail matter, and that the statement was never received by him.

The testimony of both parties relating to the mailing of the first statement, etc., was fairly submitted to the jury, and they must have found as a fact that it was properly deposited in the post office, as alleged by plaintiff, and duly received by the company. There appears to be no error in admitting the testimony bearing on that question, or in the instructions which accompanied its submission to the jury. It is well settled that the fact of depositing, in the post office, a properly addressed, prepaid letter, raises a natural presumption, founded in common experience, that it reached its destination by due course of mail. In other words, it is prima facie evidence that it was received by tire person to whom it was addressed; but that prima facie proof may be rebutted by evidence showing that it was not received. The question is necessarily one of fact, solely for the determination of the jury, under all the evidence: Folsom v. Cook, 115 Pa. 549; Insurance Co. v. Tunkhannock Toy Co., 97 Id. 424; Huntley v. Whittier, 105 Mass. 391, and cases there cited; Briggs v. Hervey, 130 Mass. 188.

For the purpose of this case, therefore, it must now be accepted as true, that the first statement was received by the company within the required time.

It is, however, contended that the itemized statement in question was not shown to have been in accordance with the requirements of the policy, and hence it amounted to nothing, whether received or not. We cannot assent to that proposition. Assuming, as in view of the verdict we must, that the statement was duly received, the company could not in good faith treat it as a mere nullity. If it was found to be informal or defective, as proofs of loss, and the company was unwilling to accept it as such, it was its duty to return the paper, with specification of defects, so that plaintiff might have an opportunity of correcting them. When such statement of loss is furnished within the stipulated time, and there is nothing to show that it was not in good faith intended as a compliance with terms of policy, it is the duty of the underwriter, if it means to rely upon failure to comply, to give prompt notice of its objection, pointing out defects, etc. Such provisions in policies of insurance are intended for the information and protection of the underwriter, and cannot, with impunitjr, be used to ensnare the unwary and confiding. In such circumstances, the failure of the company to return statement of loss, or to notify the insured of defects therein, is some evidence for the jury of a waiver of strict compliance : Gould v. Dwelling House Ins. Co., 134 Pa. 570, and cases there cited. In that case, our brother Mitchell, after reviewing the authorities, said: “ The result of the decisions may therefore be formulated in the following rule: If the insured, in good faith and within the stipulated time, does what he plainly intends as a compliance with the requirements of his policy, good faith equally requires that the company shall promptly notify him of their objections, so as to give him an opportunity to obviate them; and mere silence may so mislead him, to his disadvantage, to suppose the company satisfied, as to be of itself sufficient evidence of waiver by estoppel.”

Every reputable and trustworthy insurance company recognizes the propriety of this rule, and acts upon it.

The evidence in this case indicates that, in doing what he did, the insured intended in good faith to comply with the requirements of his policy. Self-interest could not have prompted him to do anything else. The defendant company, on the other hand, was so identified with the ease above cited as to be somewhat familiar with the rule therein stated.

The further objection that plaintiff was not the sole and unconditional owner of the land on which his house stood, etc., involved questions of fact, which were also determined in his favor. There was some evidence tending to show that, by an amicable agreement with his coheirs, plaintiff became sole owner of that portion of the land on which he afterwards erected the house in question. The testimony was conflicting, but we are not prepared to say that it was not proper for the consideration of the jury. It was fairly submitted to them, and they must have found that there was a family arrangement or agreement whereby plaintiff became entitled in severalty to the land on which his house stood.

There appears to be nothing in either of the fifteen specifications of error that requires a reversal of the judgment.

J udgmeut affirmed.