177 Pa. 262 | Pa. | 1896
Opinion by
Five adjoining buildings, forming a single store, at corner of
“ It being understood that this policy is. to indemnify the-assured for any loss accruing to her by reason of having to pay rent for the within-described building (during) such time or times as the building may be untenantable by reason of fire or fires occurring during the continuance of this policy, loss not to be limited by date of expiration of the policy, it being understood that the sum insured is the annual rental of the property,, and the amount of loss is to be computed on the basis.”
Peterson, the landlord, also took out in the Pennyslvania, Pire Insurance Company a policy covering the term of the lease, indemnifying him against loss of rents by fire in the sum of $8,500, in which was this clause:
“ It is understood and agreed, that in case the above-named building, or any part thereof, shall be rendered untenantable by fire, this company shall be liable to the assured for the actual loss of rent ensuing therefrom, not exceeding the sum insured, which sliall be taken as the yearly rent of the premises, and this company shall be liable only for such proportion of any loss as the sum hereby insured bears to the annual rent of the building. The assured agreeing to rebuild or repair said premises in as short a time as the nature of the ease will permit. Loss to be computed from the date of the occurrence of said fire, and cease on said building being rendered tenantable.
“ Note: In case the assured shall elect not to rebuild or repair said premises in as short a time as the nature of the case will admit, then the loss of rent shall be determined by the time which would have been required for such purpose. Pennsylvania Fire Insurance Company.”
After the fire, the property was unoccupied for any puipose until the 24th of July following, a period of six months, when
After the fire, tins defendant denied any liability, except a proportionate one on loss of rent under both policies, which was, with interest, $3,096.50, and which it paid to plaintiff without prejudice to her alleged right to claim her entire loss. The Pennsylvania Company, although disclaiming all liability, paid the landlord $2,000, for benefit of Mrs. Heller. 'The plaintiff paid the landlord the rent for one year, the time the premises were untenantable, and claimed defendant was liable on its policy to her, for a balance of $3,000 with interest, payment of which being refused, she brought suit. The defendant filed affidavit of defense, averring that the agreement to rebuild was-a collusive arrangement between the parties at the suggestion of the landlord’s insurance company, by which that company was to escape any payment on account of the loss. The court, below entered judgment for want of a sufficient affidavit of defense; on appeal, this judgment was reversed, this court holding that the facts tending to show collusion would, if proved, relieve the landlord’s insurance company from payment of its proportion of the loss, and the evidence tending to show fraud was for the jury. The case is reported in 133 Pa. 152. When the record was remitted, the defendant, instead of pleading and .going to trial, filed a demurrer to plaintiff’s statement of facts as not being sufficient in law to warrant judgment the court below sustained the demurrer, and plaintiff appealed this court, in opinion by Chief Justice, see 151 Pa. 101, held that, under the circumstances as averred by plaintiff, the averment of fraud in the affidavit having dropped out of the case,
The judgment is affirmed.