Shanahan v. Agricultural Insurance

Opinion by

Orlady, J.,

These two cases'were tried together, and one appeal is taken by consent. The plaintiff brought suit on a policy of insurance against each of these defendants to recover from each the sum of $750. The policies issued were of the standard form and described the property as follows: “ $1,500 on the frame stable ■ building and additions thereto, on the north side of Jersey avenue near Charles street, Gloucester City, N. J., other insurance permitted without notice until required.” The plaintiff was the owner of two stables, of equal value, which were used for a common purpose and which were separated from each other by a distanoe of ten or twelve feet.

An application was made by the plaintiff to the local agent of the defendant companies for an insurance of $3,000 on the two stable buildings. The local agent examined the properties, approved the risk and issued a policy of insurance for $1,500 in each of the defendant companies, and in both the property was described as before quoted. One of the stables was totally destroyed by fire, and when suit was brought to recover for the loss, each company made the same .defense: “ That said stable building so insured is still standing at said location, and has not been in any way or manner injured or damaged by any fire whatever ;■ that the fire referred to in said plaintiff’s statement was in another building altogether than the one insured under said policy, which other building was in no way or manner connected with the building insured, and was not an addition thereto, but an entire, separate and distinct building, not situated on the north side of New Jersey Avenue near Charles street, Gloucester City, N. J., but was situated in the rear of the building insured under said policy at a considerable distance therefrom.”

The plaintiff contended that the policies were intended to cover the two stables and in this he was supported on the trial by the direct testimony of the local agent of the defendant companies, and this fact was found by the jury in favor of the plaintiff. The description of the property was made on typewritten slips, in the office of the local agent, and these slips were signed by him in the name of his firm, and then affixed to the printed policy in a blank space provided for that use. The verdict determines as a fact that in the typewritten description the word “building” instead of “buildings” was erroneously used, and the whole controversy arises from this alleged error.

The first and second assignments of error are not considered for the reason that they are framed in disregard of Rule 17 of this court: Denniston v. Phila. Co., 1 Pa. Superior Ct. 599; Com. v. Smith, 2 Pa. Superior Ct. 474, and counsel violate this rule at their peril in this as the similar rule in the Supreme Court : Raymond v. Schoonover, 181 Pa. 352. The case was fairly presented to the jury by the learned trial judge: “ If you believe that these policies were made out in the shape that they are, by accident and oversight, that it was the intention of the person that applied, and the companies who issued these policies, to cover the two stables instead of one — then the verdict ought to be for the plaintiff.”

It was purely a question of fact, and there was ample evidence to warrant the verdict. In Eilenberger v. Protective Mutual Fire Ins. Co., 89 Pa. 464, it was held that the fraud or mistake of a knavish or blundering agent, done within the scope of the powers given him by an insurance company, will not enable the latter to avoid a policy to the injury of the insured, who innocently became a party to the contract, and in Insurance Co. v. Cusick, 109 Pa. 157, in referring to the Eilenberger Case, it is said: “ In the case cited the agent committed a fraud by setting down false answers in the application; in the case in hand the agent committed a blunder by incorrectly describing the property insured. In neither was the act complained of in any proper sense the act of the insured; in neither can the company be permitted to cast upon the insured the consequences of the crime or blunder of its own agent. The cases cannot be distinguished in principle.” The case now before us is much milder in its facts than either of the two first cited, as the insured and agent of the companies agree, that both stables were intended by them to be covered by the insurance, and that by the clerical error of a typewriter a letter was dropped so as to make the description refer to a building instead of buildings.

There was no written application in this case; the local agent was familiar with the premises and intended to have the two policies cover just what the instired desired — both stables. The erroneous description was the act of the agent alone, in the face of light and knowledge, and it was unknown to the insured until after the loss occurred. The defendant cannot be released from its contract because the plaintiff, acting in good faith, accepted without examination the policy written by its agent: Dowling v. Merchants Ins. Co., 168 Pa. 234.

After the verdict was rendered, the defendant submitted some ex parte affidavits as ground for a new trial, but the court below refused to be moved by them. Upon an examination of these affidavits, and applying them to the proof adduced on the trial we do not feel warranted in interfering with the decree entered; as, except in clear cases of abuse of discretion, refusal of the court below to grant a new trial is not assignable for error, and there is nothing in this case to make it an exception to the rule: De Grote v. De Grote, 175 Pa. 50.

It does not necessarily follow that the perjury of a witness can be made a ground for equitable, interference even though not discovered until after the trial: Ins. Co. v. Erb, 2 Chest. Co. 587; and whether or not this should be done, is largely a matter of discretion with the trial judge.

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