176 A. 208 | Pa. | 1934
This action on a policy of insurance based on a loss sustained by fire resulted in a judgment for the insured. The court below refused to receive an offer of evidence. It was proposed to show, inter alia, that the insurance policy of the Concordia Company was substituted for that of appellant, the Dubuque Insurance Company; second, the agency of Seeley, who negotiated the cancellation and substitution, and, third, the payment of the return premium on the Dubuque policy. *146
It was admitted that the Dubuque policy was in the possession of the insured at the time of the fire and was valid if there was no substitution; it insured property owned by Bessie Jones and Ruth Wakley. The offer did not pretend to show that Bessie Jones consented to the cancellation and substitution or was a party to it. Where property is owned jointly, and so insured, one owner cannot cancel the policy of insurance and substitute another therefor without the consent of the coinsured. To prove effective cancellation and substitution of insurance policies it is necessary that the consent of all parties insured be shown: Joyce, Law of Insurance, 2d ed., volume 3, section 1668. The offer did not attempt to show the consent of both parties.*
Seeley, an insurance agent, was to show cancellation and substitution, but the offer on its face states he was an agent of the company and not of the insured. The offer proposed to affirm what the brokerage agency and the company did, not what the insured, Mrs. Wakley, did or agreed to do, even assuming that she could act for Bessie Jones. An agent who secures a policy of insurance has no general authority to cancel the policy and substitute another therefor unless specifically authorized so to do: Scott v. Sun Fire Office,
The payment of the return premium on the Dubuque policy was attempted to be demonstrated by proving that *147 a check was delivered to Miss Lewis, an intimate of Mrs. Wakley, at the latter's home. The check was never cashed, nor was there any offer to prove the receipt of it by Mrs. Wakley. Such evidence would not show payment of the return premium.
A part of appellant's offer might have been good, but the greater part was objectionable; the court below refused to receive the offer as a whole. Where, in an offer of evidence, part is relevant and part is not, it is not necessary for the court to separate the good from the bad, but it may reject the entire offer: Hunter v. Bremer,
The second error complained of involves the proof of plaintiff's loss. A paragraph in the statement of claim was offered, with a specific averment as to value. The affidavit of defense simply denied this statement generally. The policy limited the loss on the building to $3,000. It was totally destroyed. The statement averred the value to be $6,045. The court below held that the denial of the amount of loss was insufficient. The Act of May 14, 1915, P. L. 483, section 8, provides that "It shall not be sufficient for a defendant in his affidavit of defense to deny generally the allegations of the statement of claim." Defendant simply denied plaintiffs' averment without giving any reason or any figures to contradict the statement. Whether the denial was intended to cover the loss or items in connection therewith is not stated. The purpose of requiring more definite affidavits is to make it possible for a plaintiff to recover judgment for amounts that are admitted to be due. As stated by Mr. Justice SIMPSON in Fulton Farmers Assn. v. Bomberger,
The other assignments of error are without merit.
Judgment affirmed.
