Kronk v. Birmingham Fire Insurance , 1879 Pa. LEXIS 341 ( 1879 )

Mr. Justice Sterrett

delivered the opinion of the court,

The policy in suit was issued April 13th 1875, by the Birmingham Fire Insurance Company to Caroline Kronk and O. Conway, indemnifying them against loss or damage by fire to the amount of $1250. One week thereafter, Conway, with the consent of the company, endorsed on the policy, assigned his interest therein to Mrs. Kronk, thus vesting in her the sole ownership of the policy. The property, consisting of merchandise and household goods, was subsequently destroyed by fire, without the fault, so far as appears, of any of the parties interested in the policy.

The plaintiffs introduced testimony, tending to show that preliminary proof of loss was promptly furnished and acceptedtas satisfactory by the officers of the company. Inasmuch as the court ruled in favor of the plaintiffs on that subject and held that the evidence was sufficient to go to the jury, the question is not before us.

The main ground of defence was that Mrs. Kronk had made a bill of sale of the property to A. Bonscheiner, the equitable plantiff, before tbe policy was issued, and hence she was not the entire, unconditional and sole owner at the time the property was insured.

The learned judge, after referring to the testimony bearing on this branch of the defence, said: “ My view of the law is that the bill of sale had the effect of conveying such title to Adam Bonscheiner, and such property in the goods and chattels, that the sole, entire and unconditional ownership of the property was not in Mrs. Kronk on the 13th of April 1875, the date of the policy of insurance.” He also instructed the jury, as requested in defendant’s third point, “ that under all the evidence in the case the plaintiff is not entitled to recover,” and thus relieved the jury from passing on any question of fact. In this we think there was error.

In the first place, there was testimony before the jury from which they would have been warranted in finding that the bill of sale was not delivered to Bonscheiner until after the insurance was effected. It is true that, in the absence of testimony to the contrary, the presumption would be that the paper was delivered on the day it bears date, April 3d 1875, but Mrs. Kronk testified that it was delivered after the policy of insurance was issued, and in this she was to some extent corroborated.. In fact it was after the policy was issued that she acquired Conway’s interest in the goods, and had the policy assigned to her, as above stated. But, however the fact might be, as to whether the so-called bill of sale was delivered before or after the insurance was effected, it was manifestly a question for the jury and not for the court. If they had found, as they might have done, that it was delivered afterwards, the condition as to entire, unconditional and sole ownership would have been inapplicable; and, on the authority of Hill v. Cumberland Yalley Mutual Protection Co., 9 P. F. Smith 474, the policy would not have been avoided by reason of any right acquired by Bonscheiner under the bill of sale. In that case it was held that a contract for the sale of the insured property, and receipt of part of the purchase-money, as between the company and the insured, was not an alienation of the property by him, nor a transfer or change of ownership, and did not avoid the policy under a condition similar to the one now before us. It was there said that “ conditions or clauses in policies, avoiding them in case of alienation, or transfer, or change of ownership, without the assent of the insurers, are but declarations of existing principles of law against insurance without an interest; in other words, gambling policies. * * * But, w'here the interest exists in an undoubted, insurable form in the insured, the objection is technical and not to be favored.”

But, assuming that the bill of sale was delivered before the policy was issued, the latter was not void under the condition as to sole and unconditional ownership. This principle was recently ruled in The Insurance Co. v. Wilgus, 7 Norris 107. In that case Wilgus had purchased property at Orphans’ Court sale, paid one-half of the consideration and was to receive a deed on payment of the residue in one year! He took out policies of insurance, containing a clause like the one under consideration, without specifying the nature or extent of his interest. It was held that his title, though an equitable one, nevertheless vested in him the “ entire, unconditional and sole ownership, subject to the payment of the balance of purchase-money,” and that he was entitled to recover. In delivering the opinion of the court, the present Chief Justice says the balance of purchase-money “ was practically an encumbrance. It is true the legal title was in the vendors, but they could use it only to enforce payment of the price agreed upon. In this respect it is exactly the case of a mortgage, which vests the legal title in the mortgagee for some purposes.” In this case the testimony clearly shows that the transfer to Bonscheiner was, at most, a mere security, in the nature of a chattel-mortgage. He had advanced money to Mrs. Kronk, and she appears to have been anxious to make him as secure .as possible, and for this purpose executed the paper. She still retained the general property in the goods, as well as the exclusive possession. At most he had but a special or qualified right of property, which, while the general property coupled with possession remained in Mrs. Kronk, was insufficient to avoid the policy.

Judgment reversed and a venire facias de novo awarded.