Roe v. Dwelling House Insurance , 149 Pa. 94 ( 1892 )

Opinion by

Mb. Justice Gbeen,

The fire which was the subject of this action occurred on the night of March 28, 1890. The house was let. to a tenant until April 1st, following. The tenant removed from the building on March 24th, but did not complete the removal of all his goods until the 27th. The plaintiff testified that he had leased the premises to another tenant, to commence from April 1st, and the tenant, Sivers byname, testified that he had leased it for a year from about April 1st. There was no contradiction of any of this testimony, and the learned court below left it to. the jury to say whether there was an unreasonable vacancy in the transfer of the tenancy from the outgoing to the incoming tenant, charging that if the vacancy were only reasonable the condition of the policy on that subject was not broken. We think this action of the court below was entirely correct, and within the line of our decisions in similar cases. The building was a dwelling house, it was leased until April 1st, and it was also leased for another year from that time. The tenant commenced moving on March 24th, and finished on the 27th, leaving an interval of but four days until the new occupancy was to commence. We think this was not the case of an absolute abandonment of the occupancy of the premises, without any new tenancy being provided, as was the fact in McClure v. Ins. Co., 90 Pa. 277. It was rather the temporary vacation of the premises, such as frequently occurs upon the change of tenancy to suit the convenience of the departing tenant. The facts in the case of Ins. Co. v. Hannum, 1 Mona. 369, and referred to in Doud v. Ins. Co., 141 Pa. 47, were almost precisely similar to those of the present case. There the outgoing tenant moved out on April 1st, but the incoming tenant, who was to have moved, in on the same day, did not, in fact, do so, but had made his arrangements to move in on the 5th. The fire occurred on the 3d. The court below held that this was not such a cessation of occupancy as would vitiate the policy, and we affirmed the judgment. The interval of vacancy there was three days, and here it was four, and that seems to be the only difference between the two cases. We do not think the additional day in the present case at all affects the principle. We do not consider it necessary to repeat the reasoning in the Doud case, though it is quite applicable to the facts of this. The interval of vacancy was somewhat shorter, but it was the principle that a vacancy of such a character is not to be regarded as a breach of the condition, which gives the case importance in determining a contention such as the present. The period of non-occupancy was but a reasonable vacation, such as is entirely consistent with the good faith of the party, and does not amount to the abandonment of possession which the policy prohibits.

Upon the other chief point of dispute, the case seems to be controlled by our decision in Penna. Fire Ins. Co. v. Dougherty, 102 Pa. 568. Immediate notice of the loss was given by the plaintiff to the defendant, through Mr. D. R. Lathrop, insurance agent, and one of the firm of Lathrop, Gray & Williams, at Montrose. On April 2, 1890, the defendant wrote to the firm acknowledging receipt of their letter of March 31st, notifying them of the loss under the policy in suit, and saying they would send Mr. Melchert to attend to it. This gentleman called to see the plaintiff about ten days after the fire, and notified the plaintiff that the company was not liable, because the house was not occupied at the time of the fire. The building was a total loss, and under our'ruling in the case of Ins. Co. v. Dougherty, supra, the company having been notified immediately, no further notice or technical proofs of loss were necessary.

In that case we said: “ But beyond this, as the policy embraced a house alone, which was valued at $700; as the loss was total, and as, of that loss the company undoubtedly had full notice, we think, under the authority of the Lycoming Mutual Fire Ins. Co. v. Schollenberger, 8 Wr. 259, and the Farmers’ Mutual Ins. Co. v. Moyer, 10 W. N. C. 129, no further notice or proofs of loss were necessary. As a rule, the law does not require vain things, and technical proofs could but restate that of which the company was already informed.” The same case also decided that, “ the waiver of the' proofs of loss required in a policy may be inferred by any act of the insurer, evincing.a recognition of liability, or a denial of obligation exclusively for other reasons.” Both of these principles were applicable to the facts of this case, and either of them is sufficient to defeat the defendant’s defence.

We see no objection to the admission of the letter of the defendant company to Lathrop, Gray & Williams. It was received in reply to a previous letter addressed to them by this firm, and presumably, it was their genuine letter. It had all the marks of authenticity, and it was very easy to prove its want of authority if desired. Being a letter received in due course of a correspondence upon the subject of this loss and this policy, and followed up by a visit from the person named in the letter, as one who was to be sent on behalf of the company, it was certainly for the jury to say whether it was their letter, and whether the person, who called upon the defendant, was their agent. There is no distinct question of an express waiver arising upon the testimony, and a discussion of that subject is not necessary. But the fact that the loss was total, that notice of it was immediately sent to the ‘defendant, that the person who visited the plaintiff was a person of the same name as the one promised to be sent by the defendant in the letter, and that he denied all liability of the defendant on other grounds than the want of technical proofs required by the policy, were sufficient to submit to the jury on the question whether the technical proofs were waived by the acts of the defendant. This question was submitted to the jury by the court below, and as there was no contradictory evidence given by the defendant, the jury naturally found for the plaintiff. We think there ivas no error in submitting the question to the jury, and we cannot see how they could have found in any other way than they did.

The assignments of error are all dismissed.

Judgment affirmed.