Bonnert v. Pennsylvania Ins. , 129 Pa. 558 ( 1889 )

Opiniq/N,

Me. Chief Justice Paxson :

This. was an action of assumpsit in the court below, brought uptbi a policy of insurance to recover the amount of loss caused by the destruction by fire of the insured property. The plaintiff kept a small country store in Jefferson county, and obtained a policy of insurance from the defendant company in the sum of $1,000, covering the storehouse building, and the stock of merchandise contained therein. On the 25th day of March, 1887, the premises were destroyed by fire, and the plaintiff alleges that he sustained loss to the amount of $3,500. Notice of the fire was immediately given to the agent of the company, and within thirty day§ after the fire the plaintiff made-out proofs of loss as required by the policy, together with the various certificates, and forwarded them to the company. Divers negotiations, resulting in nothing but delay, followed; and on November 29, 1887, the plaintiff commenced this suit in the court below. Upon the trial he was met with a condition in the policy which required the suit to be commenced within six months after the fire. As this condition had not been complied with, the court below entered a judgment of nonsuit against him.

For anything that appears in this record, the plaintiff’s claim was free from fraud, and the loss an honest one. If he fails to ge't the indemnity he bargained for when he effected his insurance and -paid his money, it is because of a condition in his policy to which he assented, or to which he must be presumed to have assented. The plaintiff complains, however, that this condition of the policy was waived, not by express words, but by the acts and conduct of the company and its officers, which threw him off his guard, and lulled him into security. When an insurance company attempts to defeat a recovery upon a policy upon a condition which was' ifitended solely for its own benefit, and which deprives the assured, fipwever honest his claim may be, of the indemnity which he paidTqr, it is not too much to hold the company to entire good faith.'\The breach of condition must be promptly taken advantage oB Nothing else must be alleged as a reason for non-payment, and^specially must not the insured be led astray by proposing settlement on grounds other than the alleged breach of condition: Ben Franklin Ins. Co. v. Flynn, 98 Pa. 627. A limitation or condition in a policy of insurance, intended for the benefit of the cornporartion, may be waived by it; and the fact of waiver is a question for the jury: Coursin v. Insurance Co., 46 Pa. 323. It Vas said by Mr. Justice Thompson, in delivering the opinion V>f the court in the case just cited: “ If it [the company] acted and promised, after the action was legally barred, as if it did not intend to insist on the limitation, and put the party to trouble, expense, and anxiety in regard to his claim, they need not complain of a jury finding that they did waive it. Under such circumstances, juries will be very likely to do so; and sometimes, probably, on pretty slight evidence.” There is a long line of cases which hold that the waiver need not be express. It may be inferred from the acts of the insurers evidencing a recognition of liability, or even from their denial of obligation exclusively for other reasons. It is sufficient to refer to one of our latest cases: Leb. M. F. Insurance Co. v. Erb, 112 Pa. 149. It was said by Mr. Justice Gordon in Penna. F. Insurance Co. v. Dougherty, 102 Pa. 568 : “ Prima facie, the insured is entitled to have his loss made good immediately upon its happening; and, when the loss appears to be an honest one, we are not disposed to scan very strictly the evidence which tends to rebut a technical forfeiture of the right to payment.”

It remains to test the facts of this case bj' the light of these decisions. As the court below nonsuited the plaintiff, he is entitled to all the inferences which may be fairly deduced from the testimony produced by him. We have, then, the facts that notice of the fire and full and sufficient proofs of loss were furnished the company in. accordance with its rules, and within the time prescribed, and that, in obedience to a call from the company, he sent them in the month of June all the books and papers in his possession throwing any light upon the subject of his loss. It was the duty of the company to examine the books and papers promptly, and notify the plaintiff of the result. Instead of doing so, they kept them until the limitation had expired, and then only returned them after a demand therefor. The effect of this was to throw the plaintiff off his guard, and to lull him into security. Why should he commence suit against the company so long as they were investiga fcing the case, and had all his papers ? Good faith required that the plaintiff should have had a plain answer, yes or no, to his demand for payment, and that such answer should have been given before the limitation had expired. The conduct of the company in this respect has about it the unmistakable and unsavory flavor of sharp practice. The pretext for all this delay was of the flimsiest character. The company was calling for books and papers which the plaintiff did not have. He had already sent them all. If insufficient for the purpose for which they were sent, they should have been promptly returned, with notice that the company would not pay. The question of their sufficiency could then have been passed upon by a court and jury. We also find that as late as October 5th, after the limitation had expired, Mr. Allewelt, the adjuster of defendant company, wrote to plaintiff’s attorney, saying that when he gets all the books and papers asked for he will make the examination as speedily as possible and return them. I attach no importance to the allegation that at this time Mr. Allewelt was not the adjuster of the defendant company. He has been acting as such from the beginning, and cannot now be allowed to play fast and loose.

We need not discuss the case further. The question of waiver was for the jury, and we think there was sufficient evidence upon this point to submit to them. It follows that it was error to direct a nonsuit.

The judgment is reversed, and a procedendo awarded.