McKelvy v. German American Insurance , 161 Pa. 279 ( 1894 )

Opinion by

Mr. Justice McCollum,

The policy in suit was by its terms void, if without the consent of the insurer indorsed thereon, there was when it was issued, or at any time during its continuance, other insurance upon all or any portion of the property covered by it. It is conceded that the plaintiff was the exclusive owner of this property, and that at the time of the fire and for seventeen months previous thereto there was other insurance in his name on a part of it. Prima facie therefore a case of double insurance was presented, and to the extent of it, at least, the policy issued by the defendant company was void. The “ other insurance ” was obtained from the London Assurance Corporation six months after this policy was issued, and soon after the fire an itemized statement and appraisement of the loss upon the property included in it was furnished to the corporation, with the assistance of its agents who had been duly notified of the loss. Four months after the fire the plaintiff forwarded to the defendant company his proofs of loss, and declared therein there was no other insurance on his property “ known, authorized or acknowledged ” by him. These proofs having been returned to him for correction in accordance with the requirements of the company, he made and forwarded an amended statement, accompanied by a copy of the policy issued upon his property by the London Assurance Corporation, and declared that he then disclaimed any benefit under said policy and looked wholly to the defendant company for compensation for his loss. The facts above stated are not controverted, and they seem upon their face to constitute a bar to any recovery by him, in this action, of compensation for the loss of property covered by the London policy. But he testified on the trial that he did not know of the existence of this policy until after the fire, and that he then learned that his wife had procured it, and had, with the aid of the agents of the London company, made and delivered to it the statement and appiaisement already referred to. He was corroborated by his wife, who testified that she obtained and carried the policy without notice to him, and that she did not know of the existence of other insurance upon the property covered by it, before she made for the London company a statement of the loss. In other words, there was a concurrence in their testimony to the effect that before the fire each was without knowledge of the insurance procured by the other. They testified also that since they discovered there was a double insurance, neither of them had made any claim upon the London company for the loss of the goods on which its policy was issued, but they did not testify that they had surrendered the policy, or notified the company that the insured disclaimed any benefit thereunder. We cannot find in their evidence any notice to the defendant company or its agents of such disclaimer until the record or amended proofs were filed, more than five months after the loss occurred. The reference to other insurance in the plaintiff’s first proofs of loss was disingenuous, because it was so expressed that it might convey the impression that he did not then know of the existence of additional insurance upon his property, when the fact was that he knew of it immediately after the fire.

The learned judge instructed the jury to the effect that if the plaintiff did not authorize or ratify the additional insurance, and if when he was informed of it he promptly repudiated it, liis claim upon the policy in suit was not affected by it. From that portion of the charge which related to the claim of the plaintiff that he did not know until after the fire that his wife had taken out additional insurance, we quote as follows : “ Did he know that before the fire? He says he did not, and she says he did not. After the fire what was his duty ? As soon as he found it out his duty was immediately to disavow it, which he says he did. He says he told the agent about the policy, and told him he did not recognize it at all. I say to you that if you find that he really did not know it, did not know his wife had taken out this policy, and as soonas he found it out he told the agent of the defendant company, ‘ I do not recognize that at all, I know nothing about it, I stand on my policy with you,’ he can recover provided the other facts are made out.” The vice of this instruction was that the plaintiff was inadvertently represented by it as having sworn to that which nowhere appears in his testimony. It was a clear misstatement of the evidence on a vital point in the case, and as it is probable that the defendant company was injured by it we sustain the first specification of error.

The majority of the court are not satisfied that the learned judge erred in the'other instructions complained of, and the second, third and fourth specifications are overruled.

Judgment reversed and venire facias de novo awarded.