Miller v. Iron City Mutual Fire Insurance

Opinion by

Willard, J.,

In Dennis v. Insurance Company, recently decided by this court (4 Pa. Superior Ct. 225), we held that a draft given by an insurance company in settlement of a claim for loss by fire was not a payment of the claim where the amount of the draft was based upon proof of loss sworn to by the insured, where there was also evidence of fraud on the part of the agent of the insurance company in instructing and directing the insured to state his loss in the proofs far below its true value. In the case before us the suit was for the recovery of $533.33 upon a draft given by the appellant to the appellees in settlement of a loss by fire under a policy of insurance forming the contract between the parties. The draft is fully set forth in plaintiff’s statement of claim and copy thereof attached. By an examination of appelleé’s proofs of loss, exhibits A and B attached to and made part of the affidavit of defense, it appears that the appellee had insurance in three companies amounting to $3,500, one third in each company; that the sound value of the property insured at the time of the fire was $4,112.95 ; that the loss or damage by fire was $2,506.17; most of the loss, to wit, $1,957.93, is fully set forth in the eighth item of schedule B, in that item claim being made for eight hundred and twenty crayons of the value of $1,451.45. It is positively averred in the affidavit of defense that in making up the proofs of loss the appellee knowingly and fraudulently misstated the number of crayons destroyed, and the value thereof, as they actually lost not exceeding one hundred and fifty in number and the cash value thereof did not exceed $200.00. It is further stated and averred in the affidavit that the draft was issued by the appellant for its proportionate share of the loss, under the belief that the facts contained in the proofs of loss were true as therein stated; and further, that they were not true, but false and fraudulent, being knowingly and fraudulently made by the appellee for the purpose of deceiving thé appellant.

If the particular averment as to the difference between the number and value of the crayons actually destroyed by fire, and the number and value as sworn to in the proofs of loss is true and can be established on the trial, then it will necessarily appear that the draft was given for a much larger amount than the appellant was liable to pay. If, further, it was fraudulently obtained as averred, the affidavit was sufficient to carry the ease to the jury. There was no admission of any amount due by the defendant, and where the affidavit is good as to any part of the claim without such admission, judgment cannot be entered for any part not so admitted: Reilly v. Daly, 159 Pa. 605; Muir v. Shinn, 2 Pa. Superior Ct. 24.

[n this case it will be observed that no rule of court was relied upon in the entry of the judgment.

The judgment is reversed and a procedendo awarded.