
    Beatty versus The Lycoming County Mutual Insurance Co. The Lycoming County Mutual Insurance Co. versus Beatty.
    1. A condition in a fire policy was that notice of a fire should be given to the “ secretary forthwith.” The morning after the fire, the insured, and the local agent of the company, with his counsel, visited and examined the premises; the insured was examined on oath, his statement signed by him was sent next day by the agent to the secretary. Held, that this was a compliance with the condition.
    2. The condition required that there should be given to the secretary within, thirty days “ a particular account of such loss.” The notice was a loss of “ household furniture $367, groceries $233,” the same as in the policy. Held, that the court below properly ruled that this was not a compliance with the condition: held, also, that the question of sufficiency should not have been submitted to the jury.
    4. To constitute waiver of notice, there should be some official act or declaration of the company during the currency of the time, something from which the insured might reasonably infer that the underwriters did not mean to insist on it.
    5. Mere silence is not enough to infer waiver.
    6. After the thirty days without “ a particular account,” nothing but an express agreement with the company would be sufficient.
    7. Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350, Inland Ins. Co. v. Stauffer, 9 Casey 397, distinguished.
    May 16th and 17th. 1870.
    Before Thompson, C. J., Read, Askew and Sharswood, JJ.
    
      Writs of error to the Court of Common Pleas of Blair county: No. 74 and 87, to May Term 1868.
    This was an action of covenant on two policies of insurance, to January Term 1859, by Daniel Beatty against the Lycoming County Insurance Company. The case had been before tried, and the judgment reversed in the Supreme Court. (2 P. E. Smith 456).
    The last trial was February 4th 1868, before Taylor, P. J. The plaintiff gave in evidence two policies from the defendants to him; one; No. 37,775, dated July 29th 1854, insuring $600, viz., on “household furniture” $367 andón “groceries” $233. The other, No. 41,140, dated May 1st 1855, insuring $600 on a frame dwelling-house in Duncansville, near Altoona. One of the conditions of the insurance was, that in case of fire “ the insured shall forthwith give notice thereof to the secretary, and within thirty days' after said loss shall deliver to the secretary a' particular account of such loss or damage, signed by his or her or their own band or hands, or by their guardian, attorney or agent.” He gave evidence also of the fire and of the property lost.
    James McCloskey testified: “John Shoemaker was acting as agent for the insurance company; he was present the day after the fire; McClay Hall was with him; he is a lawyer; they were taking testimony concerning the fire; there was a number examined as witnesses; McClay Hall acted as counsel on behalf of the company; he took down testimony, all that was given; Mr. Beatty was examined, I think he was examined in regard to his losses; after they left the tavern Mr. Beatty was complaining that he did not know how to proceed; Mr. Beatty said he would go down and employ Mr. Blair to carry on the matter and write out the notice; Mr. Shoemaker replied to him that he had met with a great loss, and he was going to write to them and notify the company immediately; I think Mr. Hall said to him, You will have thirty days to go and come on, anyhow, he need not do it until Mr. Shoemaker heard from them; Mr. Shoemaker said, I don’t think you will have any trouble with it.”
    Thomas Hollan testified: “ I was present at the arbitration of the case; Mr. Shoemaker was represented as the agent, at the arbitration; they had received some anonymous letters; one was produced; they said they couldn’t find the other one; the charge was that Mr. Beatty had fired the building himself — that there was foul play; there was no other objection made at that time than that.” * * * *
    The plaintiff proved the handwriting of Shoemaker, and that he was postmaster at Altoona. He then gave in evidence the copy of a notice of the fire to the secretary of the defendants at Muncy, Pennsylvania, as follows, viz., * * * “ One frame house, insured in the Lycoming County Mutual Insurance Company, &c., was, on the 31st day of August 1858, completely destroyed by fire and entirely lost.
    “ You are also hereby notified that at the same time and place, the household furniture and groceries of the undersigned, insured by policy of insurance, dated the 29th day of July 1854, and numbered 37,775, as follows, viz., household furniture, $367, groceries, $233, making together the sum of $600, were also lost and destroyed by fire aforesaid; the whole property of undersigned in the house at the time being destroyed, with the exception only of a few articles of household furniture.
    “ You will take notice further, that the said the Lycoming County Mutual Insurance Company will be looked to by me for payment in full of the amount and sum insured by the policies aforesaid, and payment in full hereof will be required and demanded from them.
    “ Daniel Beatty.
    “ Duncansville, Blair Co., Pa.”
    Attached was the affidavit of plaintiff, dated September 20th 1858, “that the statements made in the foregoing notice are correct and true.”
    The following also was attached:—
    “ Copy of the within notice compared with original by me, and enclosed to the secretary of the Lycoming County Mutual Insurance Company, this day by mail, September.
    “John Shoemaker, P. M.”
    For the defendants. John Shoemaker testified : “ I was agent for Lycoming Insurance Company at time of fire; I resided at Altoona; I was agent to take applications and make surveys; that was all my authority at that time; I also acted as receiver; Joshua Bowman was secretary of company then, and resided at Muncy; I had no authority to act in any other way than I have stated; I had no authority to receive notice of loss ; I -was in the employ of the company when the case was tried before arbitrators at Altoona; L. W. Hall was the attorney of the company; the defence made was on the ground of fraud and want of notice agreeable to contract, and particular statement of loss not having been furnished; no other grounds of defence that I remember; * * * I made an examination next day after the fire; we looked at the place and examined Mr. Beatty and some few others; I had heard in reference to it some dissatisfaction expressed as to, the origin of the fire; I also received an anonymous letter, saying Mr. Beatty should not be paid for his loss, and to satisfy the members of the company an investigation should be made; Mr. Beatty requested me to come up and look at the ruins; I thought over the matter, and thought it best to get McClay Hall to go with, me to make the investigation, which we did; hut it was not done by direction of the company or with their knowledge; it was at my own instance; I communicated to the company that I had investigated the matter; Mr. Beatty did not request me to give notice to the company; he said he would employ Mr. Cress-well ; I think a day or two after I told him it was necessary for him to give notice; he didn’t say anything; the company, after they received notice from Mr. Beatty, wrote to me to resist the claim, and authorized me to employ counsel on the ground that I stated before, of fraud and want of notice, and want of particular statement, as required by the conditions of the policy; I notified Mr. Beatty they wouldn’t pay him, and after that he brought suit; I received that notice as postmaster at Altoona; I compared it and signed the certificate, not as agent — that was given at Altoona in the office; after they received this notice a few days, they instructed me to resist the claim; I told Beatty they would not pay him: * * * the testimony of Beatty and McCauley was written down by Mr. Hall; he was at that time in the office of his brother, L. W. Hall, Esq.; Mr. Hall swore them and took the notes of testimony ; I sent the notes of testimony to Mr. Bowman ; we examined them about the origin of the fire, not particularly about the loss; * * * I was agent when Beatty brought the paper to me; I judged it to have been written by Mr. Cresswell; I put it in the post-office; they merely replied that they had received the notice and to resist the claim; I told Beatty, after I received that letter, that they would not pay him; * * * I think Beatty did say that he could not tell the amount of groceries; he did not hesitate about giving me an account of his loss.”
    The defendants gave in evidence the deposition of Joshua Bowman, their secretary, of which the following is an extract:—
    “ I am familiar with the claim of the plaintiff in this case. John Shoemaker was not an agent of this company at the time of plaintiff’s loss for any other purpose than to take applications; as such an agent he had no authority to receive or accept notices of loss in this or any other case; he had no general or special authority from the company or executive committee to adjust plaintiff’s loss, or do any other act with reference thereto; whatever he did was without the authority or knowledge of the company; the company never received a particular account of plaintiff’s loss or damage, as required by his policy, the policy requiring notice to be given forthwith; the company never did anything looking to a recognition of Beatty’s claim against the company.”
    The defendants’ points were :—
    1. The plaintiff not having given notice of the loss forthwith to the secretary of the company as required by the policies, and not till twenty days after the fire, cannot recover on either policy.
    2. The plaintiff’s account of his loss in his notice, dated September 20th 1868, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the secretary within thirty days of the fire, he cannot recover on his policy, No. 37,775.
    3. There is no evidence to be submitted to the jury of a waiver by the company, of the requirements of the policies as to the notice to be given forthwith by the plaintiff to the secretary of the company, and the plaintiff cannot recover on either policy.
    4. There is no evidence to be submitted to the jury of a waiver of the requirements of the policy to give a “ particular account of the plaintiff’s loss or damage” within thirty days after the fire, and the plaintiff cannot recover on policy No. 37,775.
    Judge Taylor, in his charge, said:— * * * “ Upon these general facts, the first question which meets us, is, was there a compliance with the condition appended to each policy, to furnish forthwith to the secretary of the company, notice of the fire; and, also, within thirty days afterward the particular statement stipulated in the seventh condition. Here the formal notice, in the handwriting of Mr. Cresswell, forwarded for Mr. Beatty by Mr. Shoemaker, was not sent for twenty days, and we feel fully warranted in saying was not a compliance with the stipulation ‘forthwith’ to give notice of the fire to the secretary. [But we think the affidavit of Mr. Beatty, as to the origin and circumstances of the fire, sworn to and signed by him, and forwarded by Mr. Shoemaker to the secretary two days afterwards, was a sufficient notice of the fire, and a substantial compliance with that part of the condition. It stated as a fact the occurrence of the fire, was signed by the insured, and conveyed with his signature to it, to the secretary, within two or three days ; and no matter by whom or what agency or authority sent or conveyed, it was, in his possession, notice to the company of the fact communicated, on a reasonable construction of the stipulation.] [And we are also of opinion that this affidavit, and the brief formal notice drawn by Mr. Cresswell, and forwarded for Mr. Beatty, twenty days after the fire, conveyed together a sufficiently ‘particular statement’ of the loss of the building, and was a substantial and sufficient compliance with that stipulation in the condition to the policy insuring the building; though they did not, viewed separately or together, convey such a statement of the loss of the goods_insured by the other policy.]
    [ “ It is our opinion, therefore, that if you find the facts as we have stated them, there may be, as it respects this question, a recovery by the plaintiff on policy No. 41,l40, for the loss of the building; but not on the other, No. 37,775, for the loss of the goods insured by it, unless there was a waiver by the defendant of the stipulation requiring a particular account or statement of the loss to be furnished to the secretary within thirty days], — or evidence from which a jury might he allowed to infer or find such waiver ; and that presents the next question.
    SUPREME COURT £Warrislurg [Beatty v. Lycoming Oo. Mutual Ins. Co.]
    “Was there a waiver by the defendant ? The plaintiff alleges there was, as it respects both policies; while the defendant denies that there was as it respects either of them. The only evidence of it is, in what is shown to have been done by Mr. Shoemaker immediately after the fire, and in the correspondence which followed between him and the secretary of the company. Mr. Shoemaker was the local agent of the company residing at Altoona, a few miles from the insured property. It is alleged, and this appears from the evidence to be the fact, that his authority as such agent, was only to take surveys to be submitted to the company for their action, and collect or receive assessments upon policies. If so, it did not include authority to waive any condition or stipulation in a policy. The agent could only bind his principal either directly, by express agreement, or by his acts or conduct, when acting within the scope of his authority. If not authorized to waive directly, by his agreement to do so, he could not do it indirectly; or, in other words, a waiver could not .be inferred from his unauthorized act or conduct, or from what he did upon assumed authority. The stream cannot rise above its source.
    “ If therefore you find that Mr. Shoemaker was only a local agent and clothed only with authority to make surveys and receive assessments, what he did upon his own authority the day after the fire, is not, we instruct you, evidence from which a waiver could be inferred. Nor do we think the letters of the secretary to Mr. Shoemaker dated 17th September, instructing him to employ counsel to resist the claim, and stating to him, as a reason, that they believed there had been ‘foul play,’ should be submitted to your consideration as evidence from which a waiver may be inferred.
    “ The defendant alleges, also, as a further reason why there should be no recovery for the groceries destroyed, that they were not burnt in the house in which they were insured. If they were not, but in any other building, there could not, for that reason, we' say to you, be any recovery for their loss. Whether they were, or were not, is a question of fact to be determined by you from all the evidence.
    “ It remains only to answer the points made and submitted in writing by the defendant’s counsel. We are asked to instruct you,
    “ ‘ 1. That the plaintiff not having given notice of the loss forthwith to the secretary of the company as required by the policies, and not till twenty days after the fire, cannot recover on either policy.’
    “We refuse to answer this point as requested; referring to our general charge for a full and qualified answer.
    “ ‘ 2. That the plaintiff’s account of his loss in his notice, dated September 20th 1868, is not such a particular account of his loss or damage as the terms of the policy require of him, and no particular account of his loss or damage having been delivered to the secretary within thirty days of the fire, he' cannot recover on his policy, No. 87,775.’
    “We answer this point in the affirmative; there being, as we have instructed you in our general charge, no evidence of the furnishing of a particular account or statement of the goods insured in policy No. 37,775; and that there can be no recovery upon that policy.
    “ £ 3. That there is no evidence to be submitted to the jury of a waiver by the company of the requirements of the policies as to the notice to be given forthwith by the plaintiff to the secretary of the company, and that the plaintiff cannot recover on either policy.’
    “We refuse this instruction; but refer you to what we have said in our general charge, for a full answer to this and the 1st point.
    “ £ 4. That there is no evidence to be submitted by the court to the jury of a waiver of the requirements of the policy to give a £ particular account of the plaintiff’s loss or damage’ within thirty days after the fire, and that the plaintiff cannot recover on policy No. 37,775.’
    “ We answer in the affirmative, as requested.” * * *
    The verdict was for the plaintiff for $970.81. Each party took a writ of error.
    The plaintiff’s assignments of error were:—
    1. The latter two portions of the charge in brackets and the answer to the defendants’ 2d point.
    2. The answer to the defendants’ 4th point.
    The defendants’ assignments were: 1 and 2. The refusal of their 1st and 3d points.
    3. The first portion of the charge in brackets.
    
      S. S. Blair, for Beatty.
    The condition as to notice should be construed liberally: Bartlett v. Union Ins. Co., 46 Maine 500; Walsh v. Washington Ins. Co., 32 N. Y. 427. Whether the account Beatty gave was as particular as the nature of the case allowed was for the jury: Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350. Whether the condition was waived was for the jury: Inland Ins. Co. v. Stauffer, 9 Casey 402; Tayloe v. Merchants’ Ins. Co., 9 How. 390; Lycoming Ins. Co. v. Schreffler, 6 Wright 188; West Branch Ins. Co. v. Helfenstein, 4 Id. 290 ; Francis v. Ocean Ins. Co., 6 Cowen 404; Allegree v. Maryland Ins. Co., 6 Harris & Johnson 408; Etna Fire Ins. Co. v. Tyler, 16 Wendell 385; Kimball v. Hamilton Fire Ins. Co., 8 Bosworth 495 ; Hall v. The Ins. Co., 3 Phila. R. 332; Child v. The Ins. Co., 3 Sanford 26; Kervochan v. The New York Bay Ins. Co., 17 N. Y. 428.
    
      L. W. Hall and S. Calvin (with whom was D. J. Seff), for the Insurance Company.
    As to waiver: Diehl v. Adams Co. Mutual Ins. Co., 8 P. E. Smith 452; Mitchell v. Lycoming Ins. Co., 1 Id. 402; Lycoming Mutual Ins. Co. v. Updegraff, 4 Wright 312; Same v. Schreffler, supra.
    
   The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

Daniel Beatty prosecuted in the court below an action of covenant against the Lycoming County Mutual Insurance Company, to recover for losses by fire on two policies of insurance, one covering his household furniture and groceries, and the other his dwelling-house. Under the charge of the learned judge below he recovered a verdict upon the policy on the dwelling-house, but the jury gave him nothing for his household furniture and groceries. Both parties have sued out’ writs of error to the judgment.

There are several assignments of error, hut all may be disposed of by the resolution of three questions, arising upon the application of an article or condition of each policy requiring that in the case of a loss the insured shall forthwith give notice thereof to the secretary, and within thirty days of the fire a particular account of such loss or damage signed, &c.

The three errors assigned by the insurance company relate to the first question. The learned judge instructed the jury that there was sufficient evidence of notice forthwith given by the assured of the occurrence of the' fire, to fulfil the requirement of the policies in that respect. It appears that the fire occurred August 31st 1858, and that the morning after, the local agent of the company, in company with counsel, visited the premises and made an examination of the circumstances attending it. Daniel Beatty, the insured, was himself examined as a witness under oath, his testimony or statement reduced to writing and signed by him. It was forwarded by the agent to the secretary of the insurance company on the following day, and was received by him. We think the- learned judge was perfectly right in holding this a sufficient notice of the loss within the terms of the policy. It was held in The West Branch Insurance Company v. Helfenstein, 4 Wright 289, in a case in which the policy contained a condition expressed in the same words as this, that a written notice to the secretary from the local agent upon information conveyed to him by the assured is sufficient. There is nothing to prevent the assured from constituting the agent of the company his attorney to give the notice, and if he does give the notice accordingly, the company cannot object without a rule or condition prohibiting the agent from being employed for such purpose. But this case is stronger than that. The statement of the fact and circumstances of the fire was signed by the assured himself, and transmitted through the local agent to the secretary of the company. How it reached the proper destination is entirely immaterial, provided it was forwarded in due and reasonable time, which in this instance is not denied. This disposes of the writ of error of the insurance company.

The second question which is raised by the first assignment of error of the plaintiff below is, whether there was any evidence of such a particular statement of the loss under the policy upon household furniture and groceries as was required by its terms. The learned judge instructed the jury that there was not. The plaintiff maintains that the sufficiency o'f the statement was for the jury, upon the authority of The Franklin Insurance Company v. Updegraff, 7 Wright 850. The report of that case does not furnish us with the statement. It is said in the charge of the court below to have been general, not particular; that it did not specify the different articles consumed. We must assume, however, that some information was given of the character and extent of the loss. It was then for the jury to say whether it was as particular as it should have been. But in this case there was no statement at all. The paper given in evidence as such is a mere reiteration of the description in the policy, namely: “Household furniture, $367 ; groceries, $233, making together the sum of $600, were also lost and destroyed by fire aforesaid, the whole property of undersigned in the house at the time being destroyed, with the exception only of a few articles of household furniture.” It is certainly not necessary in every case to report all the items in detail which constitute the loss. It may be entirely out of the power of the assured to do so. His books and papers may have been destroyed by the fire. But every person assured must be presumed to know enough to be able to remember some particulars, or to give a description if it do not descend to details of the different kinds and value of the articles. There are few men who, with assistance of the members of their family, could not give some description of their household furniture. In The Lycoming County Insurance Company v. Updegraff, 4 Wright 311, an instruction to the jury that a statement of this character was not such a particular account of the loss as was required by the,policy, was approved and affirmed by this court. This assignment of error, therefore, is not sustained.

The only remaining question which is raised by the plaintiffs’ second assignment is, whether there was any evidence of waiver by the company of the condition requiring a particular statement. The learned judge held that there was not, and we think rightly. It was required to be within thirty days after the fire. Now to constitute a waiver there should be shown some official act or declaration by the company during the currency of the time, dispensing with it; something from which the assured might reasonably infer that the underwriters did not mean to insist upon it. Ah is remarked by the present .Chief Justice in Diehl v. Adams County Insurance Company, 8 P. E. Smith 452, “this never occurs unless intended or where the act relied on ought in equity to estop the party from denying it.” Mere silence is not enough. After the thirty days had expired without any statement, nothing but the express agreement of the company could renew or revivify the contract. Had a statement been furnished, within the time it might have been the duty of the insurers to notify the assured of any merely formal defect so that it might be remedied. If the paper dated September 20th 1858, was to be regarded as a statement and not a mere notice of the loss, the defects of it were substantial, not formal merely. The case of The Inland Insurance Company v. Stauffer, 9 Casey 397, was where a notice' of loss was given to a director and not to the secretary. A few days after-wards the president of the company and another director canm out to view the ruins, meeting there committees from other insurance companies and avowing that they came on the business of the insurers. These facts it was held might be submitted with others to the jury as evidence of a waiver of a strict and formal compliance with the condition. That case is in none of its circumstances parallel with this. The second assignment of error of the plaintiff is therefore not sustained.

Judgment affirmed.  