Opinion
April 23, 1930.
July 10, 1930.
Insurance — Personal property — Destruction by fire — Proof of loss — Waiver.
In an action of assumpsit on a policy of fire insurance, the evidence established that the plaintiff's personal property was destroyed by fire and that he notified the defendant's local agents of the loss and submitted to them a list of the articles destroyed. The local agents forwarded the report to the defendant, who later returned the list to the plaintiff demanding that he comply with the provisions of the policy relating to proof of loss. The plaintiff, however, who was a man of limited education, was not informed as to the particular information desired.
In such a case a judgment for the plaintiff will be affirmed.
An insurance carrier upon receiving proofs of a loss, furnished by an assured, in an attempt to comply with the requirement of his policy, is under a duty to examine them, and if they are found to be objectionable, to return them, pointing out the particular defects therein.
Appeal No. 66, April T., 1930, by defendant from judgment of C.P., Cambria County, December T., 1928, No. 44, in the case of Louis Cocceolle v. Westchester Fire Insurance Company.
Before TREXLER, P.J., KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Assumpsit on a policy of fire insurance. Before McCANN, J.
The facts are stated in the opinion of the Superior Court.
Verdict for plaintiff in the sum of $800 and judgment thereon. Defendant appealed.
Error assigned, among others, was the refusal of the defendant's motion for judgment non obstante veredicto.
J. Earl Ogle, Jr., for appellant, cited: Hottner v. Fire Insurance Co., 31 Pa. Super. 461; Edelson v. Norwich Union Insurance Company, Ltd., 59 Pa. Super. 379.
B.A. Sciotto, and with him Peter P. Jurchak, for appellee. — An insurance company may waive the provisions of its policy as to the time of filing proof and this may be shown by parol: Simons v. Safety Mut. Fire Ins. Co., 277 Pa. 200; Jenkins v. Franklin Fire Ins. Co., 282 Pa. 380.
Argued April 23, 1930.
The Westchester Fire Insurance Company issued a policy of fire insurance to Louis Cocceolle to cover his personal property situated in a building which he had rented. The building and contents were destroyed by fire on February 14, 1928. Plaintiff and his wife immediately after the fire notified the local agents of the company of the total loss of the personal property and submitted to them a list of the articles destroyed. The local agents sent the report to the insurance company which referred it to Lester, their manager, who mailed the list to the plaintiffs accompanied by a letter, the body of which reads as follows: "February 17, 1928. The enclosed list was forwarded to this office by Messrs. McMillen and Killens, and we are returning same direct to you and demand that you comply with the policy contract." (Signed) John L. Lester, Manager.
Eight days later the plaintiff wrote to Lester. "February 25, 1928. I received the letter the other day in which you said we comply with the policy contract so if we could get this settled because I am out of work and can't buy no furniture and I can't always stay at other peoples places so if you please answer soon to this letter. (Signed) Louis Cocceolle."
After the plaintiff and his witnesses were heard, the defendant moved for a compulsory non-suit for the reason "that there was a non-compliance on the part of the plaintiff with the contract of insurance." The trial judge declined to take this view and the defendant offered no testimony. The case was submitted to the jury who rendered a verdict in favor of the plaintiff for the amount of the policy, the loss being in excess of the insurance.
The question before us now is was there a waiver of the proof of loss on the part of the company? There is no doubt that there was notice of loss sent to the local agents and that the company was apprised of the fact and also received a list of the articles destroyed. The purpose of this list, no doubt, was to give the company information as to the articles destroyed and might be considered by the jury as an attempt to do what the insured thought was required of him under the terms of the policy. When this list was returned to him by the so-called manager of the company, there was evident reluctance on his part to give the exact information as to what was wrong with the list. The demand that the insured should comply with the policy contract conveyed no particular information to the insured who was a man of limited education, as to what was required of him and his reply requested an answer which was never forthcoming. Fair dealing would require that the information which the plaintiff sought should have been furnished. We quote from the case of Jenkins v. Franklin Fire Insurance Co., 282 Pa. 380, in which on page 384, Justice SCHAFFFR has this to say, "Upon receiving proofs of a loss, furnished by the assured, in an attempt to comply with the requirements of his policy, it is the duty of an insurance company to examine them, and if they be found objectionable, to return them, pointing out the particular defects therein: Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. 73, 89."
The defendant cites several cases. In Primo v. Safety Mutual Fire Ins. Co., 72 Pa. Super. 409, the insured relied upon a verbal promise made by the local agent that he need do nothing until he heard from him. In the case of Edelson v. Norwich Un. F.I. Co., 59 Pa. Super. 379, no attempt was made to furnish the proof of loss. In Brink v. Lackawanna Mut. F.I. Co., 90 Pa. Super. 527, the question was the authority of the local agent to waive proof of loss. These cases do not apply. In the case before us there is no question that the list of articles sent in by the plaintiff was received by the company. Under the facts which appear, the jury was warranted in finding that there was a waiver by the company of further proof of loss.
The judgment is affirmed.