Jacoby v. Providence Washington Insurance

Opinion by

Beeber, J.,

On September 13,1897, suit was brought to recover a certain amount due as the loss payable by the defendant under its policy of insurance issued to the plaintiffs. On the next day a declaration and a separate specific averment of facts were filed and both served on the defendant’s counsel of record some time before the 22d day of September. This separate specific averment of facts was filed in compliance with the rule of the court in which the case was tried, which is as follows: “ If the plaintiff shall file with his declaration or statement, separate and apart from his declaration or statement, a specific averment of facts sufficient to support his claims, verified by affidavit, and serve a copy thereof on the defendant or his counsel of record, such items of claim and material averments of facts as are not denied by the defendant, by affidavit filed with or before plea pleaded, shall be taken as admitted.” Among the other material averments of fact found in the plaintiff’s specific averment was the following: “ On the 23d day of June, 1897, the notice required had been given to the defendant, the ascertainment and estimate had been made by the defendant’s duly authorized agents, and satisfactory proofs of loss had been received by the defendant, and all things had been done and performed by and on behalf of the plaintiffs as required by said policy.”

On the 4th day of October, defendant filed its affidavit of defense, which was also its affidavit of denial as required by the above rule, in which it set forth two grounds of defense, first, that plaintiffs had set fire to the insured property, and, second, that defendant was induced to make the adjustment "and fix the amount payable by it by the false and fraudulent returns of plaintiffs as to the value of the property insured. There was no denial of any of the other material averments of the plaintiffs.

For the purpose of proving their ease the plaintiffs offered in evidence their declaration and specific averment of facts and the affidavit of defense, which was objected to by the defendant, The court admitted the papers whereupon plaintiffs rested. Defendant then offered in evidence certain proofs of loss furnished it by plaintiffs for the purpose of showing that no proofs of loss were furnished as alleged in plaintiff’s averment of facts on the 23d day of June, 1897; but that they were furnished on a subsequent date; that they were not such proofs of loss as are required by the policy and that they do not refer to the policy on which suit is brought. It also offered to prove that there were incumbrances on the real estate covered by the policy which were not set forth in the proofs of loss as required by the terms of the policy on which suit is brought. Upon objection by plaintiffs these offers were overruled. As the defendant offered no evidence to sustain either one of the defenses which the pleadings raised the court directed a verdict for the plaintiff upon the ground that the pleadings contained sufficient admissions to entitle plaintiffs to recover without further proof.

The twelve assignments of error need not be noticed seriatim, as they all practically raise only one question, which is whether the court erred in refusing to allow the defendant to put in evidence the proofs of loss for the purposes for which they were offered. It is plain to us that the pleadings put at issue only the two questions which we have mentioned already. The plaintiffs had stated in their averment that on the 23d day of June satisfactory proofs of loss had been received by the defendant. The defendant must have known when it made its affidavit of defense whether the proofs of loss were satisfactory or not, for it is admitted that they were received on the 24th day of June, and defendant did not file its affidavit of defense until the 4th day of October. It had all this time to satisfy itself whether the proofs of loss were satisfactory or not. When confronted with the blunt averment that it had received satisfactory proofs of loss, it ought to have denied it if it were not so, and especially so when it knew that the rule of court would give every imdenied material averment the force of an admission. Not denying it the plaintiffs were bound to assume it was admitted and therefore they would conclude they were not required to prove it. The same is true as to the false or mistaken statement in the proofs of loss in reference to the incumbrances. If there were incumbrances not mentioned in the proofs the defendant had another reason to object to them, and if it had done so on this ground, the plaintiffs would at least have had an opportunity to show, if they could, that the omission was due to oversight, or accident or that it was innocently although mistakenly made and not for a fraudulent purpose. To put any other construction on this rule of court would make it a pitfall into which unsuspecting parties, entirely able to prove every material fact of tbeir case if called upon to do so, but not prepared to do so because not called upon, might fall.

This rule of court when properly enforced is well'calculated to prevent the waste of the public time and to relieve litigants from unnecessary burdens. Every defendant in that court has an opportunity to raise any defense that the facts will warrant. He is at liberty to call on the plaintiff to prove any material fact which he can deny by affidavit and it is to the advantage of every one that this should be done. The issue is then reduced to the narrowest possible compass and each party knows in advance what must be proved. We are satisfied that the court below properly enforced this rule and therefore the assignments of error are overruled.

We cannot persuade ourselves that this is a proper case to impose upon the appellant the penalty provided by the 21st section of the Act of May 19, 1897, P. L. 67, intended for those who sue out an appeal merely for delay. The appellant was one of nineteen companies who resisted payment on account of considerable evidence which can honestly be said to tend to show that plaintiffs set fire to the insured property. The case of Jacoby v. West Chester Fire Ins. Co., decided at this term, was one where this issue was tried. It is true that trial resulted in a verdict in favor of the plaintiffs, but the evidence in that case and the rulings of the court during the trial were such that an appeal to this court was entirely consistent with good faith. As we do not 'think it would be proper to impose the penalty in that case we do not see any reason why we should subject the present appellant to any different treatment.

Judgment affirmed.