Elliott v. Lycoming County Mutual Insurance

The opinion of the court was delivered, July 7th 1870, by

Sharswood, J.

It was decided in The Insurance Company v. Stockbower, 2 Casey 199, that when a policy of insurance provides ££ that the aggregate amount insured in this and other comT panies, on the above-mentioned property, shall not exceed two-thirds of the estimated cash value,” any further insurance being in violation of the agreement renders the policy void. To the same effect is Mitchell v. The Lycoming Mutual Insurance Company, 1 P. E. Smith 402. The question raised upon this record is, what is meant by the estimated cash value ? Is it the estimated cash value at the time of the insurance as settled'by the parties and named in the policy, or the actual cash value at the time a second or further insurance is effected ? There is no serious difficulty in resolving this question. The policy upon which this suit was brought after the stating the amounts insured on the properties described, adds “Estimated cash value 1950 dollars.” When' therefore the same instrument in a subsequent part speaks of the estimated cash value it must be held in all fairness to refer to the sum before named as much so as if it had been expressed. Nor can it alter the contract that the insured afterwards made improvements, which greatly augmented the actual cash value, and that the company had notice of these alterations and endorsed a certificate that the risk was not thereby increased. The contract still remained unchanged. The estimated cash value by which the insured agreed to be governed in procuring other insurances was still the same. Both parties must agree to another estimate; and if the estimate named in the policy was not the criterion, then there was none. There is no authority at law or in equity to reform the contract by substituting “actual” for “estimated.” The estimate was one in which the company had concurred, and by which they were therefore bound. They did not concur in any other estimate, which the insured might put upon it, or which a jury might subsequently agree upon. The plaintiff, before obtaining an additional insurance, ought to have procured the estimated cash value in the policy to be changed and made to conform to the actual augmented value in consequence of his improvements. It is unfortunate that he neglected to take this simple precaution, but having failed to do so, it is not in the power of chancellor or jury to help him.

It is stoutly maintained, however, that there was evidence of a waiver, which ought to have been submitted to the jury. Undoubtedly, if the company, after notice or knowledge of the over-insurance, treated the contract as subsisting by making and collecting assessments under it upon the assured, they could not afterwards set up its forfeiture. It would be an estoppel which is the true ground upon which the doctrine of waiver in such cases rests: Insurance Company v. Slockbower, 2 Casey 199. But what was the evidence ? The witness called by the plaintiff to prove the assessment, produced a letter addressed to the agent to whom the duplicate was addressed, instructing him not to collect it. The agent testified that he did make the demand, but on turning to the duplicate he noticed a memorandum made by himself that he was instructed not to collect that sum, and left immediately. The assessment was not paid. It would have been error under these circumstances to have submitted the question to the jury. It'is not every mere spark of evidence which a judge is bound so to submit. There' must be enough to raise a reasonable question for decision.

Nor can it be pretended that the tender and payment into court of a sum of money as the loss on the stable was an affirmance of the entire contract. The stable was not included in the second policy of insurance effected with the North American Insurance Company. It could not therefore be said to have been over-insured. It may be that the defendants could have treated the entire contract as void and resisted a recovery for any part. Payment of money into court, when the declaration is on a special contract, admits a contract indeed so as to supersede the necessity of proving it at the trial: 1 Tidd’s Practice 625. It is an acknowledgment of the right of action to the amount of the sum brought in; but beyond the amount of that sum it is no acknowledgment of the right whatever: Id. 624. It waives the benefit of no defence, even though such defence be to the whole. It seems therefore that after payment of money into court there may be a nonsuit, a judgment as in case of a nonsuit, a demurrer to evidence or a plea puis darrien continuance, in short that the cause goes on substantially in the same manner as if the money had not been paid in at all; in other words the defendant is not precluded, by it from taking a defence which goes to the whole cause of action. - Judgment affirmed.