Matten v. Lichtenwalner , 6 Pa. Super. 575 ( 1898 )

Opinion by

Beaver, J.,

“ A policy of insurance and the premium note given therefor constitute a contract between the company and the insured and the parties usually have the same power to rescind it by mutual agreement as they had to make it.” “ A good faith agreement between the parties in a contract of insurance to annul it is valid.” “ The parties are as much bound by sueh an agreement as if the policies had been marked canceled and the premium note given up.” “ From thence the defendant had no’ insurance, she was not a member, nor was she liable on the notes.” “ The plaintiff has no more right to collect an assessment on such notes than on those which had been actually returned on like terms : ” Akers v. Hite, 94 Pa. 394. The secretary of an insurance company is the proper organ of communication between the company and the assured. It was clearly within the scope of his authority to inform the assured of the cancelation of her policy, either upon failure of the assured to comply with the condition'upon which it was issued and for the nonperformance of which the company had reserved the right to cancel it, or by agreement between the company and the-assured. If the policy was in fact canceled, there can be no recovery of the assessments on the premium note given by the defendant, unless she, were liable for losses sustained by the company prior to such cancelation: Columbia Insurance Co. v. Masonheimer, 76 Pa. 138.

The defendant became a member of a Mutual Fire Insurance Co., and, upon notice of an assessment upon her premium note to pay losses, she surrendered her policy to the agent from whom she had received it and requested it to be canceled. It was sent by the agent to the company for cancelation. The secretary acknowledged its receipt for cancelation, and the defendant was informed by the agent that it had been canceled. She subsequently received notice of two assessments, in one' of which there was a statement of assets and liabilities, showing abundance of assets for the payment of liabilities, with the assurance that, upon the payment of these assessments, the premium note would be returned, and she released from all further claims. These assessments were paid by her to the attorney designated by the company to receive them. -Upon this state of facts, the court below was asked to say that the plaintiff was entitled to a verdict for the full amount of an assessment authorized by the court of common pleas of Schuylkill county, to be laid, nearly ten years after the payment of the assessments last mentioned by the defendant. It is not surprising that the court refused to do so.

The charge of the court, in submitting the case to the jury, is clear, full and fair. The only part of it with which the appellants find fault, is that in which the only question in the case which was submitted to the jury is stated by the court as follows: “ The only question submitted to you and the only grounds upon which you could find for the defendant is this : Did the directors of the company cancel her policy ? If they did not so act, then she continued to be a member and was liable to assessment. If you find that the proper authorities of the company did cancel her policy, then you will say that she is relieved Norn liability under its terms, provided it is proved by the defendant that all the losses that had occurred down to the date of that cancelation had been paid, i. e., realized by the compamn When I say ‘ paid,’ I do not mean that the company had actually passed the money over to the person or persons who had the loss, but that the company had realized from its members, including Mrs. Lichtenwalner, what they were bound to pay to satisfy all those losses. If the defendant has not shown that she, Mrs. Lichtenwalner, had paid to the company her share'of all the losses that were incurred down to the period when the policy was canceled, if it was canceled, then you will say that she still remained liable, notwithstanding the action of the directors in attempting to give her free and cancel her policy.” In this there was no error. The jury was allowed to deal with but two facts, namely, the cancelation of the defendant’s policy and her nonliability at the time of such cancelation, by reason of the fact that the company had collected assessments with which, or had the means, to pay losses for which she was liable as a member of the company at the time. As to these questions we cannot say that there was no evidence to go to the jury. If the issue had rested upon the surrender of the poliej'- and the acknowledgment of its receipt for cancelation, there might have been some question in regard to it, but the acceptance by the defendant of the proposition contained in the notice of January 11, 1877, and the payment by her of assessments Nos. 2 and 3, which notice contained a statement of the assets and liabilities of the company justified the jury in reaching a conclusion not only that an agreement was thereby made for the cancelation of the policy but that the defendant also discharged the obligation to her co-members by such payments. There can be no doubt that, under this state of facts, if her property had burned down, she would not have been entitled to recover for its loss.from the company.

The failure of the company to return the premium note and the fact that the receiver found it among its assets, when he took charge of them, amounts to nothing, if the agreement of cancelation was made, as found bjr the jury. As was said by Mr. Justice Trunkey in Akers v. Hite, supra, “ The plaintiff has no more right to collect an assessment on this note than on those which had actually been returned on like terms.” The first, second and third assignments of error áre overruled.

In the fourth,'fifth and sixth assignments, which relate to thte admission of evidence, we can see no error. The testimony was relevant and entirely competent. It went to the root of the case, namely, the cancelation of the defendant’s policy, and, under the authorities which we have cited herein was, we think, properly received.

The judgment is affirmed.