75 Pa. Super. 390 | Pa. Super. Ct. | 1921
Opinion by
The plaintiff’s action was based on a policy of insurance issued by the defendant, covering machinery and a stock of goods on the sixth floor of a building in the City of Philadelphia. The policy was in the name of Joseph Engle, trading as En Rose Knitting Mills and Daisy Mfg. Co. It contained the usual unconditional ownership clause. Two principal defenses were presented at the trial: First, that a brother of the plaintiff was interested with the plaintiff in the business; and secondly, that it was conducted under an assumed or fictitious name — En Rose Knitting Mills and Daisy Mfg. Co.—
The second question arises under the Act of June 28, 1917, P. L. 645. This statute provides that “no individual or individuals shall thereafter carry on or conduct any business in this Commonwealth under any assumed or fictitious name, style or designation, unless the person or persons conducting or carrying on the same shall have first filed in the office of the secretary of the Commonwealth and in the office of the prothonotary......a certificate under oath and signed by such person or persons, setting forth the real name or names and addresses of all persons owning or interested in said business and also the name, style or designation under which said business is being or will be carried on or conducted.” The third section makes the carrying on or conducting of business in violation of the act a misdemeanor. The appellant seeks to avoid its obligation on the ground that it is in violation of the provisions of the statute in that the plaintiff was carrying on a business under an assumed or fictitious name, to wit: En Rose Knitting Mills and Daisy Mfg. Co. It will be noticed, as has been observed, that the policy was not issued to a party having a fictitious name. It was given directly to the plaintiff. True, he describes the name under which his business is carried on, but it cannot be correctly said to be an obligation to the Knitting Mills and Daisy Mfg. Co. That is merely descriptive of the business of the person who is taking out the policy. The contract is on its face, therefore, binding on the defendant. The burden is on it to show that it violates the statute, for there is no public policy which makes it unlawful for a person or partnership to adopt a name descriptive of the business carried on. The question is, whether the taking out of a policy of insurance on personal property
During the progress of the trial the plaintiff was recalled for cross-examination. Objection was made to such recalling and the objection sustained on the ground that the witness had been twice on the stand before, and had been cross-examined at length. This was the exercise of discretion of the court clearly within its power: Com. v. Eisenhower, 181 Pa. 470. The evidence was voluminous, ample opportunity was afforded to cross-examine the witness and nothing suggested in the argument leads us to think this discretion was abused. Moreover, the thing proposed to be proved was irrelevant. The offer had no bearing on the value of the property and did not legitimately tend to show that the fire was caused by the plaintiff;
The court was not in error in refusing the defendant’s third point. Its conclusion is a non sequitur. The defendant failed to show that the plaintiff was in any way connected with the burning of the factory, or that he
The assignments are dismissed and the judgment affirmed.