Maculuso v. Humboldt Fire Insurance ( 1922 )

Per Curiam,

Defendant company insured plaintiff’s house; a fire occurred; plaintiff sued and recovered a verdict, on which judgment was entered; defendant has appealed.

The principal complaint is that plaintiff was permitted to explain away a statement, in its proof of loss, to the effect that the insured premises were unoccupied at the date of the fire and had been so for a period of time; which statement, if correct, would have defeated her right of recovery. There was no error in this: Lebanon Mutual Ins. Co. v. Kepler, 106 Pa. 28, 34; Holleran v. Life Assurance Co., 18 Pa. Superior Ct. 573, 576; Baldi v. Metropolitan Ins. Co., 18 Pa. Superior Ct. 599, 612.

Under the circumstances presented, we need not pass specifically on the several assignments; an investigation of the record, however, discloses no reversible error. At trial defendant took no exception'to the charge, nor did it seek additional instructions, on the questions concerning ‘which complaint is now pressed, when asked by the presiding judge whether counsel had any suggestions to submit; moreover, it failed to request that the charge and points be brought upon the record: Ward v. Babbitt, 270 Pa. 370.

Defendant seeks to nullify the legal results of the omissions just mentioned by attempting to, raise in this court several questions presented to the court below on a motion for a new trial, and by assigning the refusal of that motion for error; but such practice is not permitted. In Bank of Mifflintown v. Bank of New Kensington, 247 Pa. 41, 43, we said: “Appellant, having failed to take any exception to the direct action of the court, attempted to evade the result of its omission by making the rulings the subject of a motion for a new trial, then excepted to the refusal of the court to sustain this motion and assigned such refusal as error; this is a practice which cannot be approved or permitted.”

The judgment is affirmed.