94 Pa. 345 | Pa. | 1880
delivered the opinion of the court,
In view of the facts conclusively established by the testimony in this case, the plaintiff below had no right to ignore all the terms and conditions of the policy issued in pursuance of his application, and maintain an action on the receipt of the company alone. It is not pretended that the contract of insurance was to be evidenced solely by the receipt given for the premium. On the contrary, it was distinctly understood by both parties that a policy, in the form used by the company, should be issued as the evidence of their contract.
The application of the plaintiff below, as expressed on its face, was for insurance by the company “ for the term of three years from the 3d day of May 1870;" and a policy, in strict conformity thereto, was issued and retained by him without objection until September 1871, when, with the assent of the company endorsed thereon, he assigned it to Mr. Reynolds as collateral security. No misunderstanding appears to have arisen until after the fire, which occurred May 19th 1873, sixteen days after the risk, as stated in the policy, had expired. According to the application, as well as the letter of . the policy, the insurance had then expired, and the plaintiff below had no claim upon the company. He contended, however, that his contract was for insurance to commence on the 31st instead of the 3d of May 1870, and in support of this position he produced the company’s receipt, dated May 31st 1870, in which it is recited that he has made application for insurance, &c.,
If it was true, as he alleged, that the company agreed to insure his property for three years from May 31st 1870, he had a right to have the policy reformed, or treated as reformed, so as to correspond with the correct date; but he could not ignore the patent fact that the contract with the company, when he paid the premium, was for insurance to be evidenced by a policy such as was then used by the company, containing the terms and conditions of the contract, and that such a policy had actually been issued and retained by him without objection until after the property was destroyed, and then the only complaint was that the date at which the risk commenced was the 3d instead of the 31st May 1870. If the suit had been on the policy so reformed as to give the correct date of the risk, and thus conform to the contract as he alleged it was, the insuperable obstacle of the delay in bringing suit would have been directly encountered. The twelfth condition of the policy required suit to be brought within six months, and this'was undoubtedly a part of the contract as contemplated by both parties at the time the risk was assumed. The insured could not be relieved from this condition by a mistake in the policy as to the time when the risk commenced. There was nothing to explain or excuse the condition. The pendency of the attachments did not prevent the delay of more than three years beyond the time specified in the commencement of suit on the policy. While the refusal of the company to recognise its liability, on the ground that the risk had expired, may have operated as a waiver of its right to insist on preliminary proof of loss, &c., it did not relieve the plaintiff, who claimed that the contract was in full force, when the fire occurred, from bringing suit within six months. His failure to do so was a bar to any claim he may have had against the company; and this
The' first and second assignments of error are therefore sustained.
The view we have taken of the case renders it unnecessary to consider the remaining assignments; but, assuming, as the learned judge of the Common Pleas did, that there was evidence tending to establish the liability of the company, the testimony, to which the third, fourth and fifth assignments relate, should have been received. If the company was liable at all, the measure of its liability was the value of the property at the time it was destroyed, not exceeding the amount insured thereon, with interest. The offers were to prove that the buildings destroyed were not worth more than $1200, and the personal property not more than $1300, making the entire loss not exceeding $2500. The witnesses appear to have had sufficient knowledge of the property to justify the admission of their testimony as to its value. ’ One of the offers was to prove by the witness that he was well acquainted with the buildings and their value, and that they were not worth over $1200. The remaining errors are not sustained.
Judgment reversed.
