Clymer Opera Co. v. Flood City Mutual Fire Ins.

Opinion by

Mr. Justice Moschziskeb,

This is an appeal by the defendant insurance company from a judgment entered against it upon a verdict rendered in favor of the plaintiff in an action of assumpsit brought on two policies of fire insurance. The appellant does not deny that it issued the policies sued upon or that the plaintiff suffered the losses alleged by it, but contends that since the plaintiff’s interest in the insured property was not “unconditional and sole ownership” the policies were void under the following clauses contained in each of them: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void......if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee-simple” and, “no officer, agent or other representative of this company shall have the power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such conditions and provisions no...... agent......shall have such power or be deemed or held to have waived such provisions and conditions unless such waiver, if any, shall be written upon or attached hereto......” It was admitted by the plaintiff that the land upon which the insured building stood was leased by it and that there was no endorsement on the policies relating to the character of its title, — the only endorsement thereon being to the effect that the loss, if any, should be payable to the Indiana Savings & Trust Co., as mortgagee. But the plaintiff introduced evidence to show that the defendant company’s agent had notice of the nature of its interest in the insured property prior to the placing of insurance thereon, and the jury, under instructions from the trial judge submitting this question of fact to them, found in favor of the plaintiff. It is also to be noted that there was no written application for the insurance and that it is not contended that the plaintiff was guilty of any fraud or misrepresentations in procuring the same.

In Clymer Opera Co. v. Birmingham Fire Insurance Co., 50 Pa. Superior Court. 639, involving the same facts here presented, Judge Porter of the Superior Court, correctly states the law as follows: “The question......is not whether the company had waived this particular covenant of the policy, but is whether under the facts established by the evidence it was estopped to assert that covenant. Covenants of this character have frequently been passed upon by the courts, held to be valid, and given full effect, unless the assured produced evidence establishing facts which estopped the company to assert the covenant or constituted a waiver of its provisions: Schiavoni v. Dubuque Fire & Marine Ins. Co., 48 Pa. Superior Court 252, and cases there cited. The decisions firmly establish the following principle, with regard to the covenant with which we are dealing. When the policy is issued without a written application and the agent authorized by the company to write the policy knows that one of its conditions is inconsistent with the facts, and the insured has been guilty of no fraud or misrepresentation, the company is estopped from setting up the breach of said condition: Caldwell v. Fire Ins. Association, 177 Pa. 492; Damms v. Humboldt Fire Ins. Co., 226 Pa. 358; Porter v. Insurance Co., 29 Pa. Superior Ct., 75.” Also see: Phila. Tool Co. v. British-American Assur. Co., 132 Pa. 236. In the case at bar, while the insured did not own the ground it did own the building and contents covered by the policies, and as such owner it had an insurable interest which was made known to the agent of the defendant insurance company prior to the latter’s acceptance of the risk and the issuance of the policies sued on. “Whatever mistake, or worse than mistake, was made in writing the policy ......it is clearly chargeable, not to the insured, but to the company’s agent, and should be imputed to the company itself.” Caldwell v. Fire Ins. Ass’n, supra, p. 502.

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