Sharpless Bros. v. Hartford F. Ins.

Opinion,

Mc. Justice Williams:

The plaintiffs are merchants in the city of Philadelphia, with sales rooms at Eighth and Chestnut streets. They used a building at Eighth and Jayne streets for storage, and for packing and shipping goods to purchasers. The stock carried in the storage-house seems to have been about one hundred thousand dollars in value. The company defendant issued a general policy, concurrent with those of other insurance companies on this stock, for ten thousand dollars. It was dated in February, 1889, was for one year, and in the usual form. During the summer of 1889, the plaintiffs desired for some reason to transfer the stock and business of shipping from the building on Eighth and Jayne streets to another at the corner of Fifth and Minor streets, and gave notice to the defendant company. Thereupon the company caused an indorsement to be made on the policy acknowledging notice of the fact that the goods were “about being removed,” and agreeing, in consideration of an additional sum of eighteen dollars, that “ this policy shall cover pro rata in both places during removal, and thereafter in the last-named location only.” No time appears to have been fixed for the removal to begin, or within which it was to be finished; nor does it appear when the work of removal was entered upon. A fire occurred in the Jayne-street building in November, 1889. At that time the value of that part of the stock that was in the building on Fifth street was eighty-eight thousand dollars, and the value of that part of it still in the Jayne-street building was less than ten thousand dollars. This action was brought upon the policy to recover pro rata for the loss of goods on Jayne street.

The defence rests on the construction of the indorsement on the policy. The position is taken that it limits the operation of the policy, so far as the Jayne-street building is concerned, to the specific articles of merchandise that were on the premises when the indorsement was made, and to a reasonable time for their removal from that date. This position was sustained by the learned judge of the court below, who further held as matter of law that the defendant was not liable, because the goods destroyed had not been removed within a reasonable time. The ease depends, therefore, on the construction of the indorsement. Before the indorsement was made, the policy was a general one, covering a stock which was used in business, and which was constantly changing in the specific articles composing it by the processes of shipment and supply. The plaintiffs desired to transfer this part of their business to another place. The object of the indorsement was to give consent to such removal, and to permit it to he made without losing the protection of the policy. The risk would be increased by the division ■ of the stock during removal, and so an additional premium was charged and paid. When this consent was obtained and indorsed on the policy, it did not make it necessary for the plaintiffs to remove. They might avail themselves of the privilege they had purchased, or they might refrain from doing so. If they did not move, they lost the money they paid to secure the privilege, but they lost nothing more. Their policy was unaffected by the indorsement unless they acted under it. If they acted under it, and entered upon the work of removal, they were not bound to suspend their business while that work was in progress, and devote all their energies to the transfer of the goods. They had the right to continue to buy and ship, pending removal, as well as before and after, just as they were in the habit of doing; and the policy covered, concurrently with others, the stock actually used in the ordinary way, without .regard to the specific articles of which it was composed. While the removal was in progress, the protection of the policy was on each part of the stock, according to its pro rata value. When the whole stock was transferred, the whole effect of the policy was transferred to the actual site of the stock. We think, therefore, that the indorsement did not limit the policy to the articles that were in the Jayne street building at that date.

It may be that itwas the duty of the insured, whenever they began to remove, to proceed with reasonable diligence until the work was done; but there is nothing to show when removal began in this case, or that there was any delay in its prosecution. When all the facts necessary to a judgment upon the question are before the court, we do not deny that reasonable time may be a question of law; but all the facts we find here are that the indorsement was made in July, and the fire took place in November. When the actual work of removal began does not appear. The reasonable time for completing it must, of course, be estimated from the time of beginning, and that, so far as the bill of exceptions advises us, may have been but a few days before the loss occurred. There were no facts before the court, at least there are none before us, upon which the court could determine this question as one of law. Peoples Ass’n v. Smith, 126 Pa. 317, is cited as sustaining the ruling of the court below, but we cannot see that it does so. In that ease the policy required “ immediate notice ” of an injury to be given. It was not given for several weeks, and this failure was relied on as a defence. We hold, affirming the court below, that whether the notice was a reasonable compliance with the provision of the policy was for the jury, and not for the court.

The judgment is reversed, and judgment is now entered in favor of the plaintiffs on the verdict.