Lock v. Neel Company

Opinion by

Gawthrop, J.,

This was an action of trespass. The court below directed a nonsuit and, from its refusal to take it off, comes this appeal. The plaintiff’s statement averred that on February 26, '1921, defendant, by its duly authorized agent, delivered to plaintiff a policy of insurance of the London Assurance Corporation, insuring plaintiff’s automobile in the amount of $4,000 against loss by theft and fire; that, on December 3, 1921, while the policy was in force, the automobile was stolen; that defendant, some time previous to December 3, 1921, without the knowledge, consent, approval or ratification of plaintiff, wilfully and tortiously, cancelled the policy and substituted therefor another policy of insurance dated November . 30, 1921, in the Palatine Insurance Company, Ltd., of London, purporting to insure the automobile in the sum of $3,500 against loss by theft and fire; that, immediately after the automobile was stolen, due notice and proof of loss was furnished defendant, agent for the London Assurance Corporation; whereupon, that company informed plaintiff that its policy was cancelled and refused to pay him anything thereunder ; and that plaintiff received from the Palatine Insurance Company, Ltd., which issued the second policy, the sum of $3,500. The suit was for $500, the difference between the amount of the first and second policies. The affidavit of defense denied that defendant cancelled the first-mentioned policy and averred that the company itself cancelled the policy by virtue of the right given by the terms thereof. It was admitted that defendant obtained the second policy for plaintiff.

There was no obligation or duty on the part of defendant to secure the second policy for plaintiff. Its act in securing that policy was a pure gratuity. If the company Avhich issued the first policy undertook to cancel it without giving the insured the notice required by its terms, the remedy of the insured was against that company for any loss which he sustained. The fact that defendant knew of the cancellation and secured another policy for plaintiff for $500 less than the face of the first policy, establishes no basis for holding defendant liable in the circumstances.- The fact that defendant secured the first policy for plaintiff did not make it the agent of plaintiff to keep him insured. The agency terminated when the first policy was delivered. The learned trial judge was clearly right in directing the nonsuit.

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