Hardiman v. Fire Ass'n , 212 Pa. 383 ( 1905 )

Opinion by

Mr. Justice Potter,

This was an action brought upon a policy of fire insurance to recover for a loss by fire. The property insured consisted of a dwelling house and farm buildings located in Burlington county, N. J., and owned by the plaintiff.

The policy was of the standard form prescribed by statute in New Jersey and contained among its conditions the following clause: “ This entire policy, unless otherwise provided by agreement endorsed hereon and added hereto, shall be void, if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.” In affixing the U. S. revenue stamps to the policy the company’s agent completely covered the words “ This entire policy, unless otherwise provided by agreement endorsed hereon or,” so that they could not be seen or read, but the words “ shall be void if the in ” and the clause as to occupancy were not covered. The policy was in this condition when sent to the broker and by him delivered to the plaintiff and so remained until the trial.

When the policy was issued the plaintiff and his family were occupying the insured premises. In the following October they closed the house and removed to Philadelphia for the winter. In May, 1900, they returned to the farm and continued to occupy the house until September 13, when it was destroyed by fire. During the period of their residence in Philadelphia, from October, 1899 to May, 1900, the greater part of their furniture and household utensils were left in the insured house and the plaintiff visited it at least oncea week and occasionally remained there overnight. The house was in charge of a neighbor who lived a block and a ialf away.

The amount of the loss was fixed by appraisement at 14,478, the amount claimed by plaintiff in his statement. The company defended on the ground that the policy had become void under the condition quoted above by reason of the house having been vacant and unoccupied without permission for more than ten days, and the trial judge upon this ground gave binding instructions for the defendant, and this is assigned as error.

The first proposition upon which appellant rests is, the property did not become “ vacant or unoccupied ” within the meaning of the policy. He admits, however, that if the contract was made in New Jersey, and is governed by the law of New Jersey, this position is untenable: Sonnenborn v. Ins. Co., 44 N. J. L. 220; Lattan v. Ins. Co., 45 N. J. L. 453; Hartshorne v. Ins. Co., 50 N. J. L. 427.^*

We are clear that under the facts, the contract was made in New Jersey. The broker who procured the insurance for the plaintiff testified that when he presented the application to the vice president of the company in Philadelphia, the latter looked at the form, said it looked all right, no doubt it was all right; but to send it to Mr. Taylor at Burlington. This was certainly not an acceptance of the risk nor an agreement to issue a policy. The letter of the broker to Taylor inclosing the application shows that he did not so understand it, as he requests Taylor to advise him promptly if satisfactory. The policy issued did not become effective until countersigned by the agent at Burlington, and in his letter of August 21, Taylor writes: “ If you have nothing further from us by to-morrow, consider risk placed.”

The authorities are well settled that where a policy is required to be countersigned by an agent in another state, the contract is to be governed by the law of the state where the agent resides. The substance of the cases is thus stated in 22 Am. & Eng. Ency. of Law (2d ed.), 1350, “if the policy provides that it shall not be complete until countersigned by an agent at a specified place, it is a contract of the place where it is to be countersigned.” This suit, it will be remembered, is upon the policy, and not upon any antecedent parol contract.

But even if Pennsylvania law ' were to be applied to this case, no recovery could be had, for the plain condition of the policy was broken, and the contract of insurance became void: McClure v. Ins. Co., 90 Pa. 277; Moore v. Ins. Co., 199 Pa. 49.

The plaintiff further contends that he was not bound by this condition because it did not appeal* upon the face of the policy, and he had no notice of its existence. But the only portion of the policy covered by the adhesive stamps was the beginning of the opening sentences.

If the insured had read his policy, so far as he could see it, he could not have been misled as to its requirements. It was plainly apparent that a part of the printed matter was covered by the stamps and that was sufficient to put the insured upon inquiry. Swan v. Ins. Co., 96 Pa. 37 is a case in point.

It is also urged by the appellee, and we think with force, that the insured was bound to know the contents of the policy because the contract is a New Jersey one, and the policy is the standard form prescribed by the New Jersey statute. The appellant also contends that the admitted fact that the property was occupied at the time of the issuance of the policy and at the time when the fire took place, makes any intervening breach of the condition immaterial.

But this is answered by the appellee by citing Ferree v. Ins. Co., 67 Pa. 373, and .Imperial Fire Ins. Co. v- Dunham, 117 Pa. 460. The condition that the policy should be void if the property became vacant or unoccupied and so remain for ten days was made part of the contract, and the company has a right to rely upon it: Bemis v. Ins. Co., 200 Pa. 340. Under the terms of the policy, .if the insured desired to vacate the property for more than ten days he was bound to give notice to the company. It might then give its consent, or cancel the policy. Failure to notify the company deprived it of its option in this respect, and gave it the right to treat the policy as void from that time.

The specifications of error are overruled and the judgment is affirmed.

* Also reported 14 Atl. Repr. 615. Reporter.