159 Pa. 1 | Pa. | 1893
Opinion by
Arthurholt, the plaintiff, was a retail merchant in Clarksville, Mercer county; he owned the building containing his stock of goods; in January, 1892, he applied to McKean, an insurance agent in Mercer, Pa., for insurance on the building
The defendant-refused to pay any part of the loss, because: (1) The premium was not actually paid to the company, as required by the term of the policy. (2) There were fireworks in the building at the date of the insurance, and this, by a stipulation in the policy, rendered it void. (3) There was other insurance, making in the aggregate more than two thirds the value of the property, and this avoided the policy.
Under the instructions of the court on the evidence, there was a verdict for plaintiff; hence this appeal.
It is very clear the court was right in submitting the conflicting evidence on the questions of fact, raised by the second and third objections of defendant, to the’ determination of the jury; but as counsel for appellant has not pressed the assignments of error to the instruction in these particulars, they may be dismissed.
As to the first objection, which is embraced in the first assignment of error, it is earnestly argued, that, on the undisputed facts, the court should have directed a verdict for defendant. The stipulation in the policy, which, it is urged, must defeat a recovery, is as follows : “ If the premium for this policy or for any renewal of the same, shall not be paid to the secretary or an agent of the company duly appointed as such in writing, within fifteen days from the date of its issue,” then the policy shall be void. It will be noticed, the premium money was paid to McKean, who was neither the secretary nor an
Downing does not deny that McKean merely represented him in the delivery of the policy and the collection of the money; the payment to McKean was, in its legal effect, a payment to Downing.
Taking, then, the provision in thé policy as it stands, that payment shall be made only to the secretary or to an agent duly appointed as such in writing, it is clear no act of the insured, or no act of one assuming to be an agent, and who is really not an agent of the company for the collection of the' premium, .will protect the assured against the failure of the
The court properly submitted the evidence to the jury to find whether McKean was the mere messenger or servant of Downing, and the payment to him, a payment really to Downing ; then, further, from the evidence that Downing had for years at times acted for the company, it issuing policies at his request, he collecting the premiums for twenty per cent commission, and paying the net balance to the company, whether the company had, without writing, in fact appointed him its agent to deliver this policy and receive the premium; if so, the payment to Downing was a payment to the company, and the policy could not be avoided merely because the money had not been physically lodged in the company’s treasury.
The cases cited by appellant as holding a different rule are without doubt the law, but they are clearly distinguishable on their facts from the one before us. In Pottsville Mutual Fire Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137, there were three different brokers between Haeseler, the agent of the company, and the insured; the policy was delivered to the insured, who paid the premium, but the money was remitted no further than the second broker; there was no pretence that it had reached the agent of the company authorized to deliver the policy and collect the premium. Our brother Green puts the decision expressly on the ground that the insured had paid the
While this case is clearly distinguishable in its facts from those cited, and for this reason is not ruled by the ' principles announced in them, yet if the results contended for here by appellant necessarily follow from the construction placed upon such stipulations, then must follow some qualification of the rule laid down in them. Otherwise the rulings in Marland v. Royal Ins. Co., 71 Pa. 393, followed by Greene v. Lycoming Ins. Co., 91 Pa. 387, and Pottsville Ins. Co. v. Minnequa Springs Imp. Co., 100 Pa. 137, may not seldom lead to injustice. The law in those cases may be invoked by dishonest insurance companies to escape payment of what ought to be held a clear legal obligation; and attempts will be made under them to pervert the clause referred to into a mere trap for unwary but honest insurers. Take the case in hand: The owner of property on the 27th of January receives a policy dated the 13th of same month, regularly attested, issued by the company, insuring property to the value of $1,300 against fire, for one year from its date; he pays the premium to the person handing him the policy, assuming, as a business man naturally would, that the company having intrusted the executed policy for delivery to the man who offers it to him, the same man has authority to receive the money; then, resting on the security inspired by the possession of the company’s executed contract, and his payment of the consideration demanded, he makes no further inquiry; seven weeks after the date of the policy, when nearly one seventh of the term covered by the insurance has expired, his property is destroyed, and he is met by a refusal to pay on the ground that the premium paid had not reached the company’s treasury. All this time, he has had possession of the policy with no notice from the company that the premium
Under such a state of facts, and applying to them the law invoked in the cases cited, unless the policy holder, as in this case, can further adduce evidence that he to whom he paid his money was in fact authorized to receive it, he is insured if there be no fire, but not insured if one occur. For if, without notice to him of the non-receipt of the premium oh an executed and delivered policy, the company can declare it void, when a fire occurs seven weeks after it has been paid for, it can do the same seven months after; in effect, the policy holders, under such a clause, become insurers of the honesty and promptitude of those to whom the insurance company, without a written appointment, intrusts its policies for delivery. It ought to be held that, under such a clause, the insurers themselves waive it, whenever, by their voluntary act, the policy leaves the office to be delivered to the insured on payment of the premium; and this, without regard to the fact that some one, having no nominal connection with the company as agent, hands over the policy and receives the premium. By the very fact of issuing a policy which requires, apparently, nothing but delivery and payment of premium to put it in force, the company arms every man into whose hands it may come with the power to receive its money; there could be no conduct more significant of an intention to waive the advantage of such a clause than this. But, without regard to the soundness of this individual opinion of what the law ought to be, the case before us, on its facts, being clearly outside the principles laid down in the cases cited, the judgment is affirmed, and appeal dismissed.