Armenia Ins. v. Paul

91 Pa. 520 | Pa. | 1880

Mr. Justice Paxson

delivered the opinion of the court,

The ground upon which the defendant below seeks to prevent a recovery is, that the plaintiffs were guilty of a suppression of facts material to the risk in their application for the policy. The application signed by Mary Ann Paul, the insured, includes a survey of the premises, which survey contains a' large number of printed questions with blanks left for the applicant to sign. Many of these questions were answered, and some of them were not. Among the questions left unanswered was the eleventh interrogatory, in these words: “ External exposure: What is the distance, occupation and materials of all buildings within one hundred and fifty feet? North, east, south, west?” The omission to answer as to this matter is the cause of complaint. It was alleged, on behalf of the company,-that instead of being free from exposure within one hundred and fifty feet,, various inflammable buildings were situated within that distance, and a travelled railway track, in constant hourly use by a railroad company, was located within nine feet of the saloon insured; that the smoke-stacks of locomotives passing along the track emitted sparks of fire within twelve feet of the roof of the saloon.

The fire originated upon the insured premises. It was not caused by reason of its proximity to other buildings. It may have been occasioned by the passing locomotives. But of that the company had no cause to complain. The application discloses the fact that the property was situated on “the line of the Chartiers Valley Railroad and the P. C. and St. Louis Railroad, at the junction and near the depot.” The company were thus warned that the location was one of danger.

Was the omission to answer the eleventh interrogatory such a concealment as avoids the policy ? I am not aware that this question has been decided in this state. It has been decided elsewhere, however, and the authorities are against the company. Without elaboration, the rule appears to be, that the issuing of a policy, where a portion of the questions in the application remain unanswered, is a waiver of answer to such questions: May on Ins. sect. 166, citing Wilson v. Hampden Fire Insurance Co., 4 R. I. 159; Campbell v. The Insurance Co., 37 N. H. 35; Liberty Hal] Association v. Housatonic Insurance Co., 7 Gray 261. In the case of Hall v. The Insurance Co., 6 Gray 185, it was said by Shaw, C. J.: “ The fact that one question was unanswered is immaterial ; in fact, many questions were not answered. The company by consenting to make the policy upon the application as it was, waived all claim to further answers.” As this rule seems reasonable, we adopt it. When the company came to issue this policy they saw that the eleventh interrogatory was unanswered. It was in their power then to decline the risk or seek further information. Having issued it they must be presumed to have been satisfied with the risk.

We do not regard the diagram as important. It is upon the back of the application, and was not signed by the insured. It is true there is a line printed in small type just below the signature of the applicant: “ Make a diagram of the premises on the other side of this sheet.” Such diagram was made. If it was intended to make this a diagram of surrounding property for the space of one hundred and fifty feet, it would have been only fair to have said so in the directions.

We see no error in this record.

Judgment affirmed.