28 Pa. Super. 425 | Pa. Super. Ct. | 1905
Opinion bt
This action was brought upon a policy of insurance issued
The facts developed by the testimony at the trial lie within a very narrow compass. Kompa was, at the date of the policy, the unconditional and sole Owner of the building and held by a title in fee simple the ground on which it was erected; about a year after the contract of insurance had been in existence, Kompa and his wife, by a deed dated and acknowledged October 18, 1897, conveyed the property in fee simple to John Gebinski,'who four days later, by deed dated and acknowledged October 22, 1897, conveyed to Annie Kompa, the wife of the plaintiff. No agreement or memorandum, referring to this change of interest in or title to the subject of insurance was indorsed upon the policy. The consideration mentioned in each of the deeds was $5.00 and Kompa testified that no consideration money was paid. That is the only testimony, apart from what appears upon the face of the deeds, which tends to throw any light upon why the conveyances were exe
The contention of the appellee, that there was not, previous to the loss, any change of interest, title or possession within the meaning of the policy sufficient to invalidate it, cannot be sustained. Kompa was, at the time the policy was issued, the absolute owner of the property and the policy was valid according to its terms. Had the title at that time been in his wife, as it was at the time of the loss, the policy would, from the day it was written, have failed to bind the company, for the interest of the insured would then have been “ other than unconditional and sole ownership; ” for which the policy stipulated : Swan v. Watertown Fire Insurance Co., 96 Pa. 37; Diffenbaugh v. Union Fire Insurance Co., 150 Pa. 270; Schroedel v. Humboldt Fire Insurance Co., 158 Pa. 459. There had been a change of interest in and title to the property, within the meaning of the contract, and the plaintiff was not entitled to recover unless he established that the policy had been continued by agreement indorsed thereon, or that the company had waived that condition, or proved facts which would estop the company from asserting this defense: Dornblaser v. Mutual Fire Insurance Co., 20 Pa. Superior Ct. 536; Bemis v. Harborcreek Mut. Fire Insurance Co., 200 Pa. 340; Finley v. Insurance Co., 30 Pa. 311; Buckley v. Garrett, 47 Pa. 204. It was a fundamental condition of the contract that alienation of the property rendered void the policy, but incorporated in the terms of this condition was the provision that by an agreement indorsed upon the policy it might be confirmed and continued to cover the changed ownership. This regulation was a reasonable and proper one, for otherwise the company would be obliged to insure parties without any knowledge of them, or the title under which they held. The failure of the plaintiff to have the change of title noted upon the policy was fatal to his claim, unless there be something else in the case to avert such a result.
The appellee attempted to show that the defendant company had waived this condition of the policy, or was estopped
Ought the question of the liability of the defendant to have been submitted to the jury upon the evidence presented? Thompson Derr & Brother were the agents at Wilkes-Barre, of the defendant company. There was no evidence tending to show that their powers were special. It must be assumed then that they were authorized to act as general agents of the company in all matters relating to the policies issued by them for the company. This policy expressly provided for the contingency of a change of the title and for a transfer of the policy, by an indorsement thereon of the consent of the company to the transfer. Derr & Brother were authorized to give the consent of the company to the transfer, or to continue the liability of the company under the changed ownership, in the manner which the contract provided, by an agreement indorsed upon the policy. They had not, ’however, as such general agents the power to waive the express condition of the contract. The policy had by its terms become forfeited and the company was discharged from liability, by the change of title
The evidence was equally insufficient to constitute an estoppel. Even if every clerk, cashier and messenger in the office of a local insurance agent is to be considered as a general agent of every insurance company which his employer represents, this evidence would not have warranted a finding that Ayres had made any misrepresentation as to an existing fact. The testimony would not have warranted a finding of more than the declaration upon the part of Ayres that he was “ going to fix it all right,” neither Ayres nor his employer were
The defendant company was entitled to an unqualified affirmance of its second point, requesting binding instructions, and the third specification of error is sustained.
The judgment is reversed.