American Central Insurance v. Haws , 7 Sadler 558 ( 1887 )

Opinion by

Mr. Justice Green:

In the case of Haws v. Fire Asso. 114 Pa. 431, 7 Atl. 159, we decided the main question involved in the present case. We held that the fact that the animal was not present in the barn at the moment of death by lightning did not impair the right of recovery; and the learned court below, following our ruling in that case, refused the first point of the defendant, and in that there was no error.

It is quite clear that the defendant’s special plea cannot be sustained. An action was commenced within twelve months next after the loss occurred; and although the writ was not served, an alias and pluries writ was issued, so that a proper service was finally obtained. We have always held that alias and pluries writs are a continuance of the original process, and not the inception of a fresh suit. Lynn v. M’Millen, 3 Penr. & W. 170; McClurg v. Fryer, 15 Pa. 293.

As to the proof of loss, it must be borne in mind that the los_s was total, there being but a single subject of insurance, which was entirely destroyed, and that immediate notice of the loss was given to the defendant. In such circumstances we have repeatedly held that a further detailed proof of loss was not requisite to a right of recovery. Lycoming County Mut. Ins. Co. v. Scbollenberger, 44 Pa. 259; Farmers’ Mut. F. Ins. Co. v. Moyer, 91 Pa. 441; Pennsylvania F. Ins. Co. v. Dougherty, 102 Pa. 568; Susquehanna Mut. F. Ins. Co. v. Cusick, 109 Pa. 157.

The learned court below left to the jury the question whether there was a reasonable explanation of the delay beyond thirty days, in consequence of certain facts which occurred in relation to making out the proofs of loss, and the jury found that there was, and this was quite as much as the defendant was entitled to ask for in view of the character of the facts referred to. They constituted a bona fide effort on the part of the plaintiff, not only to give notice of the loss, which he did very promptly, but also to make out the full written proofs. When he applied to the agent for that purpose the latter had none on hand but sent to the company for them. When they were received a full proof was made out and signed and sent to the company who received it without objection. We see no error in the action of the court upon this subject.

Judgment affirmed.