Farmers & Breeders Mutual Reserve Fund Live Stock Ins. v. Curran , 1916 Pa. Super. LEXIS 83 ( 1916 )

Opinion by

Kepi-iart, J.,

The jury that heard this case disagreed and were discharged. The plaintiff having submitted a point for binding direction, moved the court for judgment in its favor in accordance with the Act of April 20, 1911, P. L. 70. If there were any question which from the defendant’s evidence the jury should pass upon, this motion should have been refused. The action was instituted to recover certain insurance premiums. The interpretation of the policy of insurance being a contract on which the claim was predicated was for the trial judge. This policy did not require a formal notice to be sent to the insured of the premiums due as a condition precedent to the right to claim or sue for them. The policy created an absolute obligation on the part of the defendant to pay. The provision as to notice referred to the effect of such notice and the effect of the affjd&yit of the secretary in any action or proceeding for the premium, but by the pleadings the question of notice was not in issue. The plaintiff’s oral testimony as to notice was needlessly introduced, and its right to recover was not dependent thereon. The defendant claimed the insurance value of three horses. Proof of loss was duly made to the company. The date of the approval of these losses was immaterial as the plaintiff acknowledged its liability and credited the defendant with the amount of such losses on premiums due. This premium was due before any claim could be made under the policies for loss and the company had a perfect right to deduct the amount of the loss from money owed by the defendant. The question of cancellation was not raised by the pleadings. Had it been, the defendant would have been required to comply with the terms of the policy by paying the premiums due: Farmers & Breeders, Etc., Live Stock Insurance Co. v. Derr, 59 Pa. Superior Ct. 600. When the cancellation was made the premium of November 27th was then due. We do not feel at liberty to discuss the character of the policy of insurance generally. It may be there are certain parts of it that are against public policy, but this record does not raise any questions with respect to these clauses.

The judgment is affirmed.