189 Pa. 132 | Pa. | 1899
Opinion by
In the instructions to the jury on the subject of the return of
The plaintiff’s policy was made void by the removal of his goods to another building in another town. Cancellation is not an accurate term in regard to it, though it is the one used on several occasions by the parties. The policy was not cancelled but rendered nugatory and void by the plaintiff’s own act. As the learned judge correctly told the jury, all that the company had to do to escape liability was to do nothing. The plaintiff had no claim under it unless he proved affirmatively that it had been renewed or extended so as to cover the goods in their new place. As to this the burden of proof was on the plaintiff, and he undertook to meet it by his account of what took place between himself and the defendant’s local agents in the fall of 1895. This being denied by the agents made the issue on the
But there was a second issue made by the defendant that th« policy had been actually surrendered and cancelled before the fire. It was admitted that in fact the policy had been returned by the plaintiff to the company, and was in its possession at the time of the fire. The defendant’s agents testified that on notification from them to the company of the change of location of the goods, and that they were not now within what is known in insurance business as “ Fire Protection,” the company had refused to transfer the insurance and ordered the policy can-celled ; that they had so notified plaintiff’s brother by telephone, as previously directed by plaintiff; had also on November 19, notified plaintiff himself by letter which had not been returned to them, though bearing return directions to the postmaster; and that on November 22, they had received the policy by mail, can-celled it, returned it to the company and given the plaintiff credit on their books for the rebate. It appeared that he had had an account with them for seven or eight years. In rebuttal the plaintiff denied knowledge of the notice by telephone to his brother, and also the receipt of the letter, and testified that he had mailed the policy to the agents “ to have the transfer made which had already been made on the books,” though he sent no letter of directions to that effect with it, failed to explain the notable coincidence between the date of the letter which he denied receiving, demanding the policy, and the date of his mailing the policy to the agents, and from that time until the fire, four months later, made no effort to get the policy back, to pay the additional premium, or even to ascertain what was due. This explanation of the return of the policy, weak as it was, was probably sufficient to submit to the jury on the second branch of the case, but in submitting it the learned judge said “but I apprehend that those matters are immaterial, particularly because there is not a shadow of proof, as I understand it, that would indicate that by any of these messages, either by telephone or letter, defendant’s agents undertook to return or pay back the return premium that is necessary, unless it has been waived by the party. If a party undertakes to cancel a policy, then it is necessary to pay or offer to pay or have the right to pay waived.” This was material error. The defendant was not asserting a
Judgment reversed and venire de novo awarded.