274 Pa. 129 | Pa. | 1922
Opinion by
This appeal is by plaintiff from judgment entered on a verdict for defendant in an action on a fire insurance policy. On December 2, 1918, the defendant insurance company issued a $5,000 fire policy to the plaintiff bank, covering a quantity of cheese stored in the frame building of John Fiorini on the west side of Main Street in Mildred Borough, Sullivan County.. Later, plaintiff decided to. remove the cheese into a stone warehouse, situated a short distance away on the opposite side of the street. Thereupon the bank’s president, on December 26, 1918, telephoned J. H. Thayer, defendant’s agent, who had issued the policy, with reference to transferring the insurance to the new location. The evidence was conflicting as to this conversation; the jury, accepting defendant’s version, found that the bank president, when informed the insurance could be transferred, insisted that it be done immediately as the cheese would be moved that day, to which the agent, after vainly urging it would
The trial judge admitted evidence of the direction given by defendant’s agent to his clerk as to making the transfer, which was clearly competent as part of the res gestae. “The res gestae may therefore be defined as those circumstances which are the undesigned incidents of a particular litigated act and which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches , of any one concerned, whether participant or bystander; they may comprise things left undone as well as things done.
The original policy was in plaintiff’s possession and the transfer was agreed upon by telephone with defendant’s agent, whose office was in a neighboring borough, so the removal permit was not endorsed on the policy as it provides. It also contains a clause, inter alia, as follows, viz: “No one shall have; power to waive any provision or condition of this policy . . . unless such waiver shall be in writing added hereto.” This clause, however, was inserted solely for the benefit of the insurance company and could be waived by parol: McFarland v. Insurance Co., 134 Pa. 590; Mix v. Royal Ins. Co., 169 Pa. 639; Bush v. Hartford Fire Ins. Co., 222 Pa. 419; Witmer v. Royal Ins. Co., Ltd., 68 Pa. Superior Ct. 12; and see Ins. Co. of North America v. Melvin, 1 Walker 362.
The transfer agreement was valid although made orally. A parol contract of insurance is good except when otherwise provided by statute (26 C. J. p. 43, section 33) and so is an informal written contract: State Fire and Marine Insurance Company v. Porter, 3 Grant 123; and see Scheid v. Storch, 271 Pa. 496.
While the cheese could be moved in two* hours, the agreement was for an immediate transfer of the insurance and the question of reasonable time to remove the property was not involved. When Mr. Thayer, who had
The court below correctly distinguishes the cases of Kunzze v. American Exch. Fire Ins. Co., 41 N. Y. App., 412, and Sharpless v. Hartford Fire Ins. Co., 140 Pa. 437, cited by appellant. In the former the insured never ordered the policy transferred to the new location, and merely asked for permission to remove. In the latter the policy by express agreement, based on the consideration of an additional premium, covered the goods in both locations. But by the Act of June 8, 1915, P. L. 919, the standard policy (as is the one in suit) covers property while in one location “but not elsewhere,” except in case of a removal during or after fire. So when the insurance became effective in the new location it ceased in the old.
As the trial judge properly instructed the jury, the burden of establishing the agreement for an immediate transfer of the insurance was on defendant, but the testimony of the agent, Mr. Thayer, and of his clerk, corroborated by the entries made at the time, although contradicted by that of plaintiff’s president, and to some extent by that of his brother, was sufficient to require the submission of the question to the jury, which question was properly made the controlling one in the case.
The matter of alleged variance was not raised in the court below, and hence will not be considered on appeal: Miller v. Belmont P. & Rubber Co., 268 Pa. 51; Boyd v. E. F. Houghton & Co., 269 Pa. 273. Furthermore, that
Tbe judgment is affirmed.