Franklin Fire Insurance v. Findlay , 1841 Pa. LEXIS 61 ( 1841 )

The opinion of the court was delivered by

Kennedy, J.

The first error assigned, which is an exception to the opinion of the court below, in permitting the plaintiff to amend his declaration, cannot be sustained. By the act of 21st of March, 1806, it is made the imperative duty.of the court, either on or before the trial of the cause, to permit the plaintiff to amend any informality in his declaration, or the defendant any informality in his plea, which may affect the merits of the case. The only objection made to the court’s allowing the amendment to be made here is, that it was too late. But, according to the expréss terms of the act, it cannot be said to be too late, if it be done at any time on the trial; that is, before the close of it. The amendment then, as it appears, having been permitted while the counsel were engaged in arguing the cause before the court and jury, was certainly made on the trial of the cause, and therefore within the time allowed by the act.

The remaining errors present but one question; and that is, whether the mere seizure of the goods by the sheriff under the execution in his hands against the assured, and closing of the window shutters and locking of the doors of the house in which they were found, and were to be kept according to the terms of the policy of insurance,, without any change of their-situation or removal of them thence being made whatever, is sufficient to discharge the underwriters ?

That the policy was good, and covered the goods up to the time of their seizure by the sheriff, is not denied ; but it is argued, that as the policy of insurance operates only in favour of the assured personally, and not on the goods, so as to accompany a transfer of the right of property in them, and as the assured must have the same interest or right in them at the time of the loss that he had at the time of obtaining the policy, the seizure of them by the sheriff, which, as it is alleged, divested the assured of the right of property in the goods as well as of the right of possession to them, released the underwriters from all obligation arising out of the policy. That the policy is not assignable, so as to follow or accompany a transfer of the right or interest, which the assured had in the goods at the time it was subscribed, may be admitted; but it cannot be admitted that the assured must have, at the time of the loss, the same interest in the goods that he had at the time of procuring the policy, in order to entitle him to claim for a loss actually sustained by a peril insured against. The legal adjudications on this point show the rule to bo otherwise, and that he may recover on the policy for the loss of a diminished interest. Stetson v. Mass. Mutual Ins. Co. (4 Mass. 330.) Gordon v. Mass. Mutual Ins. Co. (2 Pick. 249.) Reed v. Cole, (3 Burr. 1512.) Strong v. Man. Ins. Co. (10 Pick. 40.)

Neither can it be admitted that the seizure of the goods in this case divested the assured of his whole and entire interest and right in the goods. He still retained the general right of properly in them, notwithstanding the seizure by the sheriff. The most that the sheriff acquired thereby, was the possession, and a special or qualified right of property. Wilbraham v. Snow, (2 Saund. 47; S. C. 1 Sid. 438.) 1 Ventr. 52. 1 Lev. 282. 1 Mod. 30. Clerk v. Withers, 6 Mod. 290. The right of the sheriff by virtue of the seizure is defeasible; and hence, I take it, that it is his duty to release and give up the goods to the defendant in the execution, upon a tender of the debt and damages, or damages, as the case may be, together with the costs, being made to him; so that until the goods are actually sold by the shei’iff, the defendant has the right to redeem them, in order to prevent a further accumulation of costs and- a loss by a sale of them for prices under their real value. The act of assembly of the 22d of February, 1821,' regulating the fees to be received by sheriffs in such case, indicates this principle pretty clearly. But the consequence of the goods being destroyed in this case by fire, after the seizure, and before a sale could be made of them by the sheriff, without any default on his part, goes to show, to demonstration, as it were, the extent of the interest which the assured still continued to have in their being preserved from such destruction, or otherwise in being indemnified under the policy for the loss occasioned thereby to him. It will not admit of a question, I apprehend, that the destruction of the goods by the fire must be his loss, unless he can obtain remuneration from the insurers upon the policy. Indeed there is no other upon whom it could possibly be made to fall, except the sheriff or the plaintiffs in the execution. . As to the sheriff, it will scarcely be claimed that he is answerable, unless he failed to use ordinary diligence in taking care of and preserving the goods; for hé can only be considered a bailee at most for compensation, and therefore responsible only for ordinary negligence. Story on Bail. 96, pi. 130, page 263, pi. 398. That he was guilty of such negligence, or did not use ordinary diligence, is not pretended. . And as to the plaintiffs in the execution, it must be admitted that they are innocent and free from all blame whatever. The only person therefore connected with the goods taken in execution and destroyed by the fire, that appears to have been in default, is the assured, the defendant in the execution; and he doubtless is so, because he did not long before pay to the plaintiffs the debt for which the goods were taken in execution. Hence the plaintiffs having failed, without any default on their part, or that of the sheriff to derive any benefit or satisfaction for their debt, from the goods of their debtor having been taken in execution, it would appear to be just and reasonable that the assured should still be held liable upon the judgment against him to pay the debt for which his goods'were taken in execution. Under this view, his interest in the policy was as great at the time of the loss of the goods by fire as at any time before. Consequently he is entitled to recover upon the policy, unless from the evidence given on the trial, the jury could have found, from the seizure of the goods by the sheriff, and his conduct in regard to them, that the risk had been materially increased. We are satisfied however, that none of the evidence given tended to prove any thing of the sort; and without evidence tending to prove it, the court would have erred, had it referred such a question, as a matter of fact, to the jury, to be decided by them. From the evidence, it appears without any contradiction whatever, that the goods remained precisely in the same situation after the seizure that they were in before, when it is admitted that they were covered and protected by the policy. But it is said that the sheriff, after making the seizure, fastened down the windows, closed the window-shutters, and locked the doors of the store-houses containing the goods, and having done this took and kept the keys in his own possession. The fire, it must be observed, happened in the night, long after the usual time of closing stores and ceasing to do business in them, indeed after all the citizens had gone to bed; so that the store-houses were really, in the same situation, at the time of the fire, that they doubtless would and ought to have been, had no seizure been made. The circumstance of the sheriff’s having the keys, and being out of the place .at the time of the fire, is immaterial, because it had nothing to do with producing the fire, and could not in the least degree prevent the goods from being destroyed by, or saved from it; for the doors could have been forced open, had. it been thought that it would have availed any thing, in as short a time without the keys, as they could have been opened by the use of them. Findlay, the assured, was present at the fire, and having the same interest in the goods to save them from being destroyed that he ever had, must be presumed to have done all that he would, had the seizure not taken place. There is not therefore any ground, so far as the evidence goes, upon which any increase of risk can well be imagined. The judgment is therefore affirmed.

Judgment affirmed.