Appeal, No. 278, Jan. T., 1954, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1952, No. 2747, in case of William Robinson v. Empire Mutual Fire Insurance Company of Pennsylvania. Judgment affirmed.
Gerald J. Haas, with him Gerber & Galfand, for appellant.
Francis Logan, with him Robert C. Duffy, for appellee.
Before Stern, C. J., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO.
The defendant insurance company appeals from a refusal of the court below to grant a new trial or judgment n.o.v. on a verdict gained by the plaintiff on a policy of insurance against loss by theft.
The genesis of this lawsuit was a telephone conversation in March, 1952, between the plaintiff and a clerk in the office of an insurance broker when the plaintiff described the equipment to be insured as a 1949 Freuhauf trailer, 32 feet long with a new 1952 torsion unit. Whether the girl in the broker's office misunderstood Freu, the first syllable of the word "Freuhauf" as the adjective "new," or whether she misapplied the "new", which correctly described the torsion unit, to the tractor which, in fact, was not new, was not developed at the trial. It is fact, however, that the insurance policy issued by the defendant company described the trailer as "new" and listed the cost of the trailer as $9,000. Upon receiving the policy the plaintiff telephoned the girl about the errors appearing in the document and she replied that necessary corrections would be made. Before the changes were effected, the trailer disappeared and the plaintiff notified the police department of the theft. The police blanketed the area with teletype directions to all law agencies to locate and pick up the absconding vehicle but it was never recovered.
The insurance company received with some skepticism and even antagonism the plaintiff's claim for indemnification under the policy and when the plaintiff refused to sign a statement which the insurance company agent had prepared, the agent (a certain Hasslinger)
closed the door on any attempted settlement with the well-known, if not ominous, "All right, go ahead and sue us."
No formal proof of loss was filed but under the circumstances none was required: Simons v. ...