Levin v. National Benjamin Franklin Fire Insurance , 5 N.J. Misc. 519 ( 1927 )

Per Curiam.

This action was brought by Anna Levin against the defendants, doing business as the Pittsburgh Underwriters, on a policy of fire insurance. The trial resulted in a verdict in favor of the plaintiff. The defendants thereupon applied for and were allowed a rule to show cause why this verdict should not be set aside; all exceptions being reserved.

The first contention is that this rule should he made absolute because it appears without contradiction that the policy in suit had been canceled some time before the loss occurred and had, consequently, ceased to be a contract binding upon the defendants at the time of such loss. It appears from an examination of the state of the case that when the plaintiff closed her proofs there was a motion to nonsuit submitted by the defendants. This motion was denied, and an 'exception to the denial was allowed. One of the grounds upon which the motion was rested was that it affirmatively appeared that the policy was canceled prior to the occurrence of the fire, and had then ceased to be a binding contract upon the defendants. This question, consequently, is within the reservation of the rule, and for that reason we consider it inadvisable for this court to pass upon it.

The next ground urged for making the rule absolute is that it appeared by the greater weight of the evidence that the insured never paid the premium called for by the policy. This question was submitted to the jury, and their finding was contrary to this contention. We cannot say that such finding was so clearly against the weight of the evidence as to justify us in setting the verdict aside.

The next ground upon which counsel urges that the rule be made absolute is that the defendants’ agent, Le Oompte, who wrote the policy in suit, was in fact the agent both of the plaintiff and the defendants, and that his acts with relation to the issuing of the policy and the notice of cancellation were binding upon her. It is enough to say in disposing of this contention that it was submitted as one of the grounds upon which the motion to nonsuit was rested. This being so, for the reason already indicated, we consider it inadvisable to determine its soundness.

The only other ground for making the rule absolute urged on behalf of the defendants is that there was no legal proof to establish a basis for the computation of damages. But this was also made one of the grounds upon which the motion to nonsuit was rested, and for that reason we decline to consider it.

The rule to show cause will be discharged.