Goldberg v. Crown Mutual Fire Insurance

Opinion by

Trexler, J.,

This is an action upon a fire insurance policy. No. 37, Section 10, of the rules of court of Somerset County provide, “In the action of assumpsit, the plea of non assumpsit shall operate, only as a denial in fact of the express contract or promise alleged or of the matters of fact from which the contract or promise alleged may be implied by law, and all defenses not admissible under this plea, except payment, set-off and the statute of limitations, shall be embraced and set forth in the special matter of defense to be filed with the plea.” The defendant entered a plea of non assumpsit and filed notice of special matter in that it denied liability for the reason that the plaintiff, contrary to the provisions of the policy, had subsequently carried additional insurance without obtaining the consent of the defendant. Under the rule of court above quoted, when the parties went to trial, after proof of the contract of insurance, the issue was confined to the single question of fact, whether the plaintiff had rendered the policy void by' the taking of additional insurance. The validity of the rule is not raised. The Act of May 27, 1887, Section 7, P. L. 272, provides that “the pleadings in all courts to be subject to the rules of the respective courts as to notice of special matter.” Under the above rule of court the general plea of non assumpsit covered only the denial of the making of the contract. The evident purpose of the rule is to limit the trial to those things that are specifically denied by the defendant and the defendant having in this case pleaded specially the matter'of additional insurance, by its act avowed that it was willing to go to trial upon that ques*366tion alone. Under the rule of court the plea of non assumpsit required the plaintiff to prove the “express contract or promise alleged” and nothing more.

The lower court allowed the plaintiff to put in evidence the proofs of loss and this is assigned for error. Ordinarily the proofs of loss are not admissible. There are a large number of cases that so hold, we need only refer to one, Rosenberg v. Fireman’s Fund Ins. Co., 209 Pa. 336. However, after the policy of insurance was admitted, the offer by the plaintiff of the proofs of loss was nothing more than putting upon the record and bringing to the notice of the jury a fact which was not denied by defendant and therefore was to be regarded as admitted. We think therefore that the admission of the proofs of loss was not error.

The only other matter we need to consider is whether the court erred in not admitting the application which did not accompany the policy, nor was attached thereto as required by the Act of May 11, 1881, P. L. 20, Section 1. Both the appellate courts of this State have uniformly held that the insured cannot in such case put the application in evidence. It is barred by the express language of the act. The question is not any longer open to discussion. The defendant however argues that as the written portion of the policy states, “that other insurance (is) permitted as mentioned on application for this insurance,” and as this clause is meaningless, standing by itself, that it was the duty of the plaintiff to introduce the application in evidence to explain what other insurance was permitted. The clause above inserted is not meaningless. It may fairly be argued that it is ambiguous. It may mean that as stated in the application, other insurance is permitted, that is without limit, not an unusual privilege granted by insurance companies, or it may mean other insurance permitted such as is designated, or permitted by the application. Of course, as between these two constructions, the lower court very *367properly chose the one more favorable to the insured: Bingell v. Royal Ins. Co., 240 Pa. 412.

The defendant having admitted the claim and its only defense being the taking out of additional insurance, the proof of that failing, the court properly directed a verdict in favor of the plaintiff.

The assignments of error are overruled and the judgment is affirmed.

Porter, J., dissents.