Mauk v. Commercial Union Assurance Co. , 7 Pa. Super. 633 ( 1898 )

Opinion by

Orlady J.,

The plaintiff desired an insurance of $10,000 on his gristmill, and through two agencies at Bedford, Pa., secured policies of $1,000 each in ten companies.

There was some delay in placing the risk, and after a company — the American — had declined to take it, a policy was issued by the defendant on May 18th, held by the agents until May 23d, and then delivered to the plaintiff.

On May 26th a representative of the defendant’s local agency called on the plaintiff and requested that the policy so issued be given to him to take to the Bedford office to have an error corrected ; and the same day the plaintiff personally delivered the policy at the Bedford office to a member of the local agency, That night the mill burned.

On May 29th the plaintiff demanded the return of the policy of the local agent and was then informed that the defendant claimed that the policy was voluntarily surrendered by the plaintiff for Ccancelation, and that a policy for a like amount in another company was substituted by the local agents, which was then delivered to the plaintiff with the assurance that it was perfectly safe.

On the 4th of the following June the representatives of the companies interested in the fire met and adjusted the loss. At this meeting the plaintiff submitted all the policies in his possession, including the one of the Susquehanna Mutual, which had been given to him in substitution of the one issued by the defendant, and proofs of loss were then made out and verified by the affidavit of the plaintiff.

On June 29th proofs of loss were made out against the Commercial Union Company; and this action was brought to recover on the policy issued on May 18th and delivered to the plaintiff on May 23 d, and he does not claim any right to recover on the substituted policy in the Susquehanna Mutual. He contends that he left the policy of the defendant company with the local agents merely for inspection, and had no notice of the alleged cancelation until after the fire had occurred. Around this disputed fact this issue is raised, and on the trial below the defendant submitted a point that “under all the evidence in the case the plaintiff is not entitled to recover and the verdict of the jury must be for the defendant,” the first assignment which was refused by the court, and the other propositions as urged in points were affirmed. The jury was instructed, viz : “This case turns largely upon the conclusion which you shall reach as to the understanding and intention of the parties at the time the insurance was taken, with regard to the right to rescind and to cancel any of these contracts, and the understanding at the time this policy in suit was brought back here and given to Mr. Moore — whether for cancelation or whether for some other purpose. You will consider all the evidence and determine the facts as we have referred to tliem, and in view of the instructions we have given you, and arrive at a just and correct conclusion.”

It must be admitted that the contract of insurance between these parties was complete when the policy was delivered and the premium paid. The subsequent treatment of that policy raises a disputed fact which was properly referred to a jury.

It is not contended that the plaintiff objected in any way to the Commercial Union policy. The request for its return to the local agent came from the company, but the purpose is disputed.

The contract as then existing could not be canceled by the insurance company without notice to the insured: Lancashire Ins. Co. v. Nill, 114 Pa. 248; Scott v. Sun Fire Office, 133 Pa. 322.

The provision for cancelation contained in the policy requires tliat five days’ notice of intention to cancel shall be given ; and Mr. Moore, the local agent, testifies in chief, that “ on the 26 th of May Mr. Mauk brought the policy in, and I told him that the company had ordered it canceled and that I would have to return the policy, and that I would keep him insured in another company. He said all right and surrendered the policy to me.” On cross-examination he stated: “ When Mr. Mauk came in he handed me the policy and he said that Mr. Wertz had asked me to bring that policy down, that there was some correction to make in it.”

The plaintiff denies this version of the conversation, and testifies in relation to the same interview that “Mr. Wertz called in and asked for the Commercial Union policjr; said there was an error in it and that Mr. Moore wanted to correct it. I took the policy to Mr. Moore and handed him the policy and he just took it up and examined it. After he looked at it he said there was nothing wrong with it. He said: ‘ I certainly must have made a mistake in making my report to the company, but I will hold the policy until I hear from the company again,’ says I, ‘ All right,’ says he, ‘ my man will be down tomorrow or the day after for flour and I would just give him the polio)'-.’ After the fire I demanded the Commercial Union policy and he says that policy is canceled; but he says I have written you up in another company perfectly safe. I demanded, I told him I wanted the Commercial Union; that that was a stout company. That was the first notice I had of the cancelation of the Commercial Union.” The plaintiff cannot have his contract changed without his consent except under the exact terms of the policy, and he refused to ratify the act of the agent of the defendant in substituting another company.

He alleges that he was not consulted in regard to it, did not assent to the act of the agent and at the first opportunity repudiated it, making this case entirely different from Arnfeld v. Assurance Co., 172 Pa. 605.

Taking the charge as a whole we think it was full, fair and adequate.

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