238 Pa. 137 | Pa. | 1913
Opinion by
This is an appeal by the defendant insurance company from a judgment entered against it upon a verdict rendered in favor of the plaintiff in an action of assumpsit brought on two policies of fire insurance. The appellant does not deny that it issued the policies sued upon or that the plaintiff suffered the losses alleged by it, but contends that since the plaintiff’s interest in the insured property was not “unconditional and sole ownership” the policies were void under the following clauses contained in each of them: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void......if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee-simple” and, “no officer, agent or other representative of this company shall have the power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such conditions and provisions no...... agent......shall have such power or be deemed or held to have waived such provisions and conditions unless such waiver, if any, shall be written upon or attached hereto......” It was admitted by the plaintiff that the land upon which the insured building stood was leased by it and that there was no endorsement on the policies
In Clymer Opera Co. v. Birmingham Fire Insurance Co., 50 Pa. Superior Court. 639, involving the same facts here presented, Judge Porter of the Superior Court, correctly states the law as follows: “The question......is not whether the company had waived this particular covenant of the policy, but is whether under the facts established by the evidence it was estopped to assert that covenant. Covenants of this character have frequently been passed upon by the courts, held to be valid, and given full effect, unless the assured produced evidence establishing facts which estopped the company to assert the covenant or constituted a waiver of its provisions: Schiavoni v. Dubuque Fire & Marine Ins. Co., 48 Pa. Superior Court 252, and cases there cited. The decisions firmly establish the following principle, with regard to the covenant with which we are dealing. When the policy is issued without a written application and the agent authorized by the company to write the policy knows that one of its conditions is inconsistent with the facts, and the insured has been guilty of no fraud or misrepresentation, the company is estopped from setting up the breach of said condition: Caldwell v. Fire Ins. Association, 177 Pa. 492; Damms v. Humboldt Fire Ins. Co., 226 Pa. 358; Porter v. Insurance Co., 29 Pa. Superior Ct., 75.” Also see: Phila. Tool Co. v. British-
The assignments of error are overruled and the judgment is affirmed.