
    FRANKLIN INSURANCE CO. vs. STAIB.
    If an insurance company pleads to the narr, without craving oyer of the application which is made a part of the policy ; or notifying the plaintiff to produce it ; the policy can be given in evidence, without the application.
    Error to the Common Pleas of Allegheny County. No. 167 October and November Term, 1874.
    This was an action on a policy of insurance. Staib had a saw mill, in Elk County, insured in the above-named company for the sum of $2,500, the policy containing inter alia, a condition that a watchman should be kept on the premises day and night. There was also a condition that in case of fire the loss should be certified to before a justice of the peace. Plaintiff declared on the policy of insurance, but did not refer to the application in his narr, or affidavit of claim. The. insurance company filed a special plea, setting forth that by the terms of the policy, the application was made a part of the policy; and that the covenants in regard, to the watchman and proofs of loss had not been complied with, but did not crave oyer of the policy. On the trial the plaintiffs did not give evidence to show that the conditions had been complied with, nor did the defendants offer to prove that they had not been complied with. The local agent of the company furnished the blanks, and the assured made the affidavit directed by the agent. There was a verdict for the plaintiff, and the insurance company then took a writ of error.
    
      George Shiras, Esq., for plaintiff in error argued:
    that where the application is referred to as a part of the policy, the policy is inadmissable without it; Lycoming Insurance Co. vs. Sailer, 18 P. F. S. 108.
    
      M. W. Acheson, Esq., contra, argued:
    that the preliminary proofs of loss were made as directed by the local agent of the company, and accepted by the company, which thus waived the condition; Bodle vs. Insurance Co., 2 Comstock 53; Franklin Fire Ins. Co. vs. Updegraff, 7 Wr. 350; Greenwald vs. Insurance Co., 3 Phila. 323; Hall vs. Insurance Co., 3 Phila. 331. Under the pleadings, there being a special plea, concluding with a verification; the burden of proof was upon the defendant, to show that the condition in regard to the watchman had not been fulfilled by the assured; Chitty on Pleading 222, 223, 310 and 311; Catlin vs. Ins. Co., 1 Summer 434-443; Houghton vs. Insurance Co., 8 Met. 114; Jones Manufacturing Co. vs. Manuf. Mutual Ins. Co., 8 Cushing 82.
   The Supreme Court affirmed the decision of the Court below on November 9th, 1874, in the following opinion,

Per Curiam:

It is unnecessary to decide whether the application was by reference made a part of the policy in this case. Neither the declaration nor the affidavit of claim referred to it, while the defendants neither by craving oyer, nor by notice, made it incumbent on the plaintiff to call for or produce it.

This, it is true, did not preclude the defendant from producing and relying upon it, as a warranty and defence in the action. But under the pleadings, the policy was evidence to go to the fury, as prima facie evidence on the plaintiff’s case. The bill of exceptions to the policy as it stood, failing, the other questions in the cause, do not necessarily arise in the record as presented to us.

Judgment affirmed.  