within twenty days of the fire. A notice

LANCASTER LAW REVIEW. of that kind was served upon the agents

VOL. XXXII.] FRIDAY, APRIL 23, 1915. [No. 25

Superior Court.

Harry Edelson, Appellant, v. Norwich Union
Fire Insurance Society.

thirty days after the fire, but that was not in time, so that the plaintiff failed to comply with that requirement of the policy, both on the agent and on the company, and the question arises then was he excused in any way from a compliance with that requirement of his policy." [1]

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But if you find there was not a total loss; if you find any of the items which he testified were destroyed, could be used Fire insurance-Delay in filing proofs afterwards for the purpose for which of loss-Waiver.

In a suit on a fire-insurance policy, a verdict and judgment for the defendant will be allowed to stand where proofs of loss were not served on the company within the sixty days stipulated in the policy or on the agent within twenty days under the Act of June 27, 1883.

The rule that proofs of loss need not be furnished in case of a total loss applies only where there is a total loss of a building or a single chattel and not to a loss of a number of chattels or a stock of merchandise.

In such case a letter denying liability of the company, received after the proofs of loss were filed, was properly disallowed as evidence on the trial, being too late to excuse the failure to file proofs.

Appeal No. 110 of October Term, 1914, from judgment of C. P. of Lancaster County, on verdict for defendant. Affirmed.

For opinion of court below on rule for a new trial, see 31 Law Review, 251. Suit to recover on fire insurance policy for total loss of chattels.

On the trial, the Court below (HASSLER, J.) charged the jury inter alia as follows:

"The policy, as I have said, required the plaintiff to give proofs of loss, that is, make up a paper in accordance with the policy, setting forth how the fire started, what the property was that was destroyed item by item, what the injury to that property was, and so on. such notice was served on the company within sixty days. The only notice of that kind that was served was sixty-two days after the fire occurred, and that was too late. The Act of Assembly says that such notice may be served upon the agent that countersigned the policy

they had been made, then he is not excused from having served proofs of loss upon the company, or its agent, and he cannot recover." [2]

Gentlemen of the jury: We have received the following communication from you: 'We beg instructions to the following question: Can we find a verdict in favor of plaintiff if we find that not all of the goods were a total loss?'

Is that what you desire to be instructed on? Having answered in the affirmative, the Court said, we answer this question, No. If all of the goods were not a total loss, it was the plaintiff's duty to have served proofs of loss upon the defendant company, or its agent, and having failed. to do so he is not entitled to recover any of his loss under the terms of his policy." [3]

The Court overruled the following offer made by the plaintiff :

"Plaintiff offers in evidence the letter marked 'A B. H. No. 1,' first, to show agency of Widmyer and Prangley, second, to show, as evidence confirmatory of what plaintiff is going to prove that they denied liability.

"Lancaster, Pa., Oct. 25, 1912. Registered mail. Mr. Harry Edelson, No. 462 Rockland St., Lancaster, Pa. Dear Sir: We hereby give you notice of the No cancellation of policy No. 5931816, issued by the Norwich Union Fire Insurance Society, Limited, and that said company will not be liable for any loss on property described in said policy after the expiration of five days from the receipt of this notice provided by its conditions. You may regard this notice as

The Court overruled the following of- Pa., 188. fer on the part of the plaintiff:

loss, although the policy provides they can not do so."

2 Wood on Ins., 2d Ed., p. 830, Chap. 12, Sec. 408:

"An adjuster for an insurance company has authority to waive proofs of loss, and he may do this by putting the refusal of the company to pay upon other grounds."

Aetna Ins. Co. v. Shryer et al., 85 Ind.,

362.

Little v. Phoenix Ins. Co., 123 Mass.,

280.

Bishop v. Agricultural Ins. Co., 130 N. Y., 488.

Same case, 29 N. E., 844.

Perry & Wife v. Faneuil Hall Ins. Co., 2 Fed. Repr., 482. Opinion 484: It is not necessary to set out the proof of waiver in the pleadings:

Hess v. Ins. Co., 38 Superior, 158. May on Insurance, 2d Ed., Sec. 589, p. 893.

The waiver by the agent may be by parol:

Ins. Co. v. Cochran, 88 Pa., 230. Roe v. Ins. Co., 149 Pa., 94. Waiver of proof of loss or condition in policy solely for benefit of Company is a question for the jury:

Coursin v. Penna. Ins. Co., 46 Pa., 323.

McFarland v. Ins. Co., 134 Pa., 590. Drake v. Ins. Co., 3 Grant's Cases, 325. Even if the policy had not been paid for when delivered, the payment was waived:

Enamel Co. v. Fire Ins. Co., 45 Super., 558.

The clause of the policy stating that notice shall be given in sixty days, does not specifically set forth that if the notice was not furnished at that time, there would be a forfeiture of the policy. We do not think that is fatal to the plaintiff's claim in this suit:

not required to furnish proofs of loss. Second: That the company through its agent, the Widmyer-Prangley Co., waived the furnishing of the proofs of loss.

The Court charged the jury that if they found that there was a total loss, then there was no necessity for the furnishing of proofs, and submitted this question of fact to the jury who found in favor of the appellee.

The unsworn-to schedule given the Prangley Agency was not a proof of loss. There was no testimony showing a waiver.

March 11, 1915. Opinion by TREXLER, J.

This is a claim of loss by fire of property insured by the defendant company. The property consisted of plumber's stock, tools and fixtures. At the trial plaintiff contended that the loss being entire, proof of it was not required, citing Lycoming County Mutual Ins. Co. v. Schollenberger, 44 Pa., 259, and the question as to whether there had been a total loss was submitted to the jury who found for the defendant company. As was said by the learned trial judge in refusing a new trial, this was giving the plaintiff a chance when he should have had none, for as pointed out by Judge Morrison in Lapcevic v. Lebanon Mutual Ins. Co., 20 Pa. Superior Ct., 294, the case of Lycoming County Mutual Ins. Co. v. Schollenberger, supra, and those following it apply to total destruction of a building and not of a stock of merchandise. The question of entire loss was the only one submitted to the jury. The principal question raised upon appeal is whether the company waived the furnishing of the proof of loss.

Two facts were established beyond dispute at the trial: (1) that no proof of Coventry Ins. Assn. v. Evans, 102 Pa., loss was served upon the local agent of

281.

John E. Malone, for appellee.

In order to avoid the effect of not having furnished the proofs to the appellee in time, appellant in the court below took two positions, viz., first: That the loss was total and therefore he was

the company within twenty days of the date of the fire as provided by the Act of 27th of June, 1883, P. L., 165, and (2) that no proof of loss was given to the company as provided by the policy within sixty days after the date of the fire. The furnishing of the proofs of loss is a condition precedent to the right

the agent or the assertion claimed to have been made by the agent that the loss would not be paid because the premium had not been paid. But the plaintiff was not lulled into any false feeling of se

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that the company had knowledge of and was satisfied with the proofs of loss submitted or that he was relieved from furnishing all further proofs of loss by any act of the agent or by the denial of liability on other grounds. Sixty-three days after the fire he submitted proofs of loss although too late to meet the requirements of the policy. As was said by Judge Beaver in Ulysses Elgin Butter Co. v. Fire Ins. Co., 20 Pa. Superior Ct., 384, as we view this case the questions of the plaintiff's being relieved from the duty of furnishing a proof of loss or the waiver on the part of the defendant of the necessity for the furnishing of the same do not arise, for the reason that the plaintiff did not avail itself of any alleged waiver and voluntarily submitted proofs of loss." We think the plaintiff has failed to show any waiver on the part of the company or any act constituting a waiver, or that he was misled in any way.

to recover and the failure so to do necessarily defeats the plaintiff unless he can show waiver of this condition of the policy by the company, or some one acting with authority in its behalf, evidenced by express words or acts imply-curity because he had reason to believe ing a waiver. The act above referred to provides that the conditions of the policy as to notice of loss and the furnishing of preliminary proofs shall be deemed to have been complied with if the insured shall furnish the company at its general office or to the agen, of the company who countersigned the policy, the preliminary proofs within twenty days from the date of the fire. There is one of two methods which the insured sustaining loss may use. He may submit the proof of loss to the agent who countersigned the policy or to the company at its general office. As was said by brother Head in Hottner v. Fire Insurance Co., 31 Pa. Superior Ct., 461, “In the present case the insured did not comply with the requirements of his policy, either in the method prescribed by the Act of 1883, or in any other way. He does not claim to have done so. He stands on the proposition that he was excused from doing so by the local agent, whose authority, in this respect, is sought to be drawn from the Act of 1883. We cannot so construe the act. The plaintiff must stand on the contract he voluntarily made, and it is binding on us as it is on him. He has not discharged the obligations it imposed on him. He has not shown any release from such obligations by the company or anyone having authority to act for it in that behalf." See also Kness v. Fire Ins. Co., 31 Pa. Superior Ct., 521, and Dunn v. Farmers Fire Ins. Co., 34 Pa. Superior Ct., 245.

The assignments of error not covered by the above discussion are as to the admission of testimony. One is the refusal of the trial judge to admit a letter of the local agent addressed to the insured after proofs of loss had been submitted, in which letter notice was given of the cancellation of the policy, the offer being made to show a denial of liability by the insurer. The Court was right in overruling the offer. A denial of liability by the company may excuse the filing of proofs of loss but after the proofs of loss have been filed there remains no reason for the offering of such evidence.

The only explanation of the acts of the plaintiff is his plain neglect to do what The other assignment is as to the rethe law required him to do. He waited fusal of the Court to allow the plaintiff until thirty days after the fire to give the to use a memorandum containing a list local agent who countersigned the policy of the articles destroyed. In view of what he says is a proof of loss. The The the position we have taken that plaintiff document furnished is not printed in his is not entitled to recover anything, this paper book. Following appellant's line assignment is of no importance. of argument the only waiver that could possibly be inferred must be found in the retention of the proofs of loss by

We have covered all the questions raised. The whole of plaintiff's case may be summarized in the statement that