46 Pa. Super. 601 | Pa. Super. Ct. | 1911
Opinion by
This was an action on a policy of reinsurance, which contained this clause:
“It is hereby expressly stipulated that the re-insured company has, during the currency of this policy (over and above all reinsurances), an insurance to an amount equal at least to this policy, on the identical property at the same gross rate, terms and conditions as this policy, and covering in the same proportion on each separate part thereof, otherwise this policy to be void and return premium to be refunded on demand.” The policy of reinsurance called for a premium of $11.90 on an insurance of $500 for eleven months, and the policy issued by the plaintiff company called for a premium of $84.00 on an insurance of $3,000 for one year. It is claimed that if the premium called for by the former had been at the same gross rate as was called for by the latter, it would have been $12.83, instead of $11.90, and therefore the policy of reinsurance was void. In answer to this contention abundant proof was furnished that the defendant knew that the plaintiff was receiving eighty per cent of the tariff rate on the policies issued by it, including the policy of insurance in question, and that there was a collateral agreement between the two companies that policies of reinsurance issued by the defendant should be at seventy-five per cent of the tariff rate, notwithstanding the plaintiff was receiving eighty per cent. This is shown quite clearly by oral testimony as well as by correspondence between the parties. In the letter of November 22, 1906, from the plaintiff to the defendant the former said, inter alia: “As opportunity offers, we will submit lines to you at seventy-five per cent of the tariff rate, if you care to have us do that”; and further, “We will be glad to receive any reinsurance from you on the same terms, excepting that we ask eighty per cent of the tariff rate
The policy contains this clause: “If an application, survey, plan or description of property be referred to in this policy it shall be a part of this contract and a warranty by the insured.” It is argued that the plaintiff had an available defense under this claim which it failed to set up against the insured and therefore the defendant may make the same defense in this action. The general rule is that if the insurer be not liable, he cannot recover of the reinsurer. Therefore it is necessary to determine whether under the evidence, the plaintiff had an available legal defense against the insured. The premises were described in the policy as a frame building “occupied for general store purposes.” In the proofs of loss furnished by the insured to the plaintiff, as well as in those furnished by the plaintiff to the defendant, it was stated that the
All of the assignments of error are overruled and the judgment is affirmed.