Lebanon Mutual Insurance v. Erb , 112 Pa. 149 ( 1886 )

Mr. Justice Clark

delivered the opinion of the Court, March, 15th, 1886.

The Lebanon Mutual Insurance Company, by way of defense, against the payment of this loss, allege : first, the title to the property was not in John Erb; second, the premium for the insurance was not paid; third, the premises were vacant or unoccupied at the time of the fire ; fourth, the notice of the loss was not given forthwith ; and fifth, the proofs of loss were not forwarded in ten days.

The property insured was a tannery, situate at Port Matilda, in Centre County. The title, it is conceded, had been in one Dr. Myer, from whom, on the 25th of April, 1882, it was sold by the sheriff, and purchased by John G. Love. Before the sheriff’s return of the sale, Love agreed to sell the property to John Erb, the plaintiff below, but, by some blunder, the sheriff returned the property as sold to Elizabeth J. Erb, instead of John Erb, and made the deed to her. John Erb testified that he made the'contract with Love for his own benefit, that he paid for it with his own money, and that the letter, which the sheriff says he received, directing the deed to be made in the name of his mother, was not written or authorized by him. Elizabeth J. Erb, his mother, testified that she had no' claim, and never pretended to have any claim to the property ; that she neither paid, nor furnished the money to pay for it, and that she never knew the title was in her name until the fact was disclosed during the trial of the cause. This testimony was wholly uncontradicted, and the learned court correctly instructed the jury that if they believed the facts to be as stated, the title of John Erb, for all the purposes of this case, was sufficient. If the facts alleged are assumed, John Erb was, in equity, the absolute and sole owner of the property; he held in trust for no one, but in his own right, and was entitled, at any time, to a conveyance. The title of his mother was the bare legal title, and was to her utterly and absolutely worthless. It was not essential that John Erb should have been invested with the legal title-if he was the sole, beneficial owner of the property: Fire Ins. Co. v. Wilgus, 7 Norris, 107; Penn’a Fire Ins. Co. v. Dougherty, 6 Out., 568.

The second ground of defense is equally without merit. One of the conditions of the contract is that “ if the assured shall have neglected to pay the premium,” the policy shall be null and void. The original negotiation for this insurance was between! John Erb and R. E. Munson & Co., general insurance agents and brokers, at Phillipsburgh, Penn. The application and survey were forwarded by R. E. Munson & Co. to Clifford B. Pease, an insurance broker of Boston, Mass., who sent them to the home office of the Lebanon Mutual Insurance Company at Jonestown, Penn. Neither Munson & Co., nor Pease, were the general agents of the defendant company, nor until this time pretended to have any authority to act for or in behalf of the company. On the 5th of June, 1882, the policy in suit, containing an acknowledgment of the receipt of $30, the cash premium, was by the company executed and forwarded to Clifford B. Pease, the Boston broker, who was thus intrusted with the delivery. Although not the agent of the company, in any general sense, he thereby became the agent for this particular purpose upon payment of the premium. The agency is necessarily implied from the nature of the transaction itself; the policy was placed in his hands for the very purpose of delivery, and the delivery, by its express terms, was conditioned upon payment of the premium; it is clear, therefore, that the authority of Pease was limited accordingly. The paper was intrusted to him, as was said in Marland v. Royal Ins. Co., P. F. S., 896, “to be handed over if the- premium was paid.” The case at bar is readily distinguishable from Pottsville Co. v. Minnequa Springs Co., 4 Out., 137, in this, that it was there stipulated, the insurance, whether original or continued, should not be considered as binding, until the actual cash payment of the premium “into the office of the company”; and also, that the premium in fact never reached'the person whom the company had authorized to receive it. The company might have retained the policy until the premium was paid, or they might have sent it directly to the insured, with instructions to remit the amount; in either case, the contract would have been ineffective until the conditicfi of the policy had been complied with. But, they chose to send it to Pease, with an acknowledgement of payment, for delivery to the insured, and this act of the company must be taken as an authorization of Pease to receive the money. We find no case, involving the question of insurance, full and clear upon this point, but the principle is one of general application, and it cannot be doubted that it is_ applicable here with like force and effect as in other cases.

Another condition of the policy provided as follows:

“ This policy will not cover unoccupied buildings (unless insured as such) ; and if the premises insured shall be vacated without the consent of this company endorsed hereon: or if the property insured be a manufacturing establishment or mill running in whole or in part over or extra time, or running at night, or if the same shall cease to be operated without consent of the company indorsed hereon, this policy shall cease and determine.” . The buildings, it is conceded, were not unoccupied, and the first part of the clause quoted is therefore wholly-inapplicable to this case- It is contended, however, as the third ground of defense,, that the tannery had ceased to be operated as such, and under the remaining portion of this clause the force of the policy- has ceased and determined. The application is not in evidence, and the policy does not disclose that the insurance was upon an establishment in operation ; it is upon a tannery building with the machinery, boiler, engine, &c. The property at the time of the. fire was occupied and used in precisely the same manner and for the same purposes as when the insurance was effected. Thomas Weston states, however, that he occupied a part of the building as a shoemaker shop, up until the time- of the fire. He further testified that there was some green bark left, and some liquor in the vats that would have gone.to waste, and he bought .some .half dressed stock hides, and tanned and finished -them out, and also some damaged hides that had been left in the vats, and that some of them were left, a half dozen or so, at the time of the fire; that he occupied the finishing room every week more or less-for the purposes stated. Under these circumstances, the court was clearly right in saying to the jury that there was no such non-compliance with the above recited condition of the policy as would defeat the plaintiff’s recovery.

As to the fourth and fifth grounds of defence little need be said. The eighth condition of the policy provides: “Persons having a claim under this policy shall give immediate notice thereof to the company, and within ten days thereafter render a particular account and proof thereof, signed and sworn to by them, setting forth, &c.” “And until such proofs as above required are produced, and examinations and appeals permitted, the loss shall not be paj^ble.” The fire occurred Thursday, 10th August, 1882, and the property was totally destrojmd. The plaintiff resided'in Phillipsbfcirgh, some twelve miles distant. ' Hearing of the loss on Monday following 14th August, 1882, he employed R. E. Munson, Esq., to forward formal notice to the company by mail. To this notice the company replied as follows :—

Lebanon, Pa., Aug. 24th, 1882.

R. E. Munson, Esq.,

Pear Sir: — Yours of the 14th inst. was sent to me, and upon examination I find that the premium on No. 20984 spe. 1952, has not been paid at our office, and therefore no liability could exist. The policy was dated June 5th, ’82— being over 70 days ago. We could not under any circumstances ever take the case under consideration.

Respectfully yours,

”D. M. Kabmany.

• The notice of the loss was certainly given within a reasonable time, under the circumstances, and this is all that can be required; and, as the company in their reply expressly repudiate all responsibility for the loss on other grounds, and decline, under any circumstances, even to take the case into consideration, it was certainly unnecessary to furnish any proofs. “ Waiver of the proof of loss required in a policy may be inferred from any act of the insurer, evincing a recognition of liability or a denial of obligation, exclusively for other reasons ”: Pennsylvania Co. v. Dougherty, 6 Out., 568; Inland Co. v. Stouffer, 9 Casey, 397; Lycoming Co. v. Schollenberger, 8 Wright, 259; Home Co. v. Davis, 2 Out., 280 ; Ben Franklin Co. v. Flynn et al., Id., 627.

Proofs of loss are but conditions precedent to the bringing of an action, and not of the insurance, and if waived the action may be brought without any effort at compliance with this requirement.

Judgment is affirmed.