Appeal, No. 114, April T., 1960, from judgment of Court of Common Pleas of Beaver County, March T., 1953, No. 114, in case of Newton M. Samuels et al. v. The California Insurance Company. Judgment modified.
E. Y. Calvin, for appellant.
Harold F. Reed, Jr., with him Reed, Ewing, Orr & Reed, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 192 Pa. Super. Page 485]
The only question here is whether the appellant should be allowed interest prior to a verdict in his favor on a claim against a fire insurance company brought under a contract of insurance.
The plaintiffs insured their premises with Caledonian Insurance Company whose liability under the policy was taken over by the defendant company. On January 16, 1952, the insured premises were damaged by fire. The plaintiffs gave notice of the loss to A. M. Eckert, agent for the defendant, who acknowledged the notice under date of January 17, 1952. Formal proof of loss was filed March 15, 1952. Subsequent negotiations for the settlement of the fire loss were fruitless,
[ 192 Pa. Super. Page 486]
and on January 13, 1953, the plaintiffs issued a summons against the defendant, The California Insurance Company. The defendant contended that the plaintiffs' policy had been taken over by a third company and that the plaintiffs had sued the wrong company. Wilson J. Samuels, one of the plaintiffs, died prior to trial, and Newton M. Samuels, the other plaintiff, continued with the action and is the appellant in this Court.
When the case was brought to trial in February 1959, the trial judge first charged that the plaintiff was entitled to recover interest at 6% per annum from 60 days after the filing of the proof of loss, or from May 14, 1952, until the date of the trial.
Subsequently, when the jury returned from its deliberation and asked whether it was required to allow interest, the trial judge reversed his position on interest and charged, over the objection of the plaintiff, as follows: "... if you find that the Plaintiff, Samuels failed to do what he should do in the exercise of his rights under the policy in requiring the case to be tried at an earlier date, you may then take that matter into consideration in the determination of what, if anything, should be allowed by way of interest on claims 1, 3, and 6. The law in Pennsylvania, is that in a case of this kind, the Plaintiff is entitled to interest on the amount of the claim. However, under the particular circumstances of this law suit, it is now more than six years since the case could have been brought to trial. Now, each of the parties could have brought it to trial sooner; they didn't see fit to do it. If, in that connection, you ...