17 Pa. Super. 360 | Pa. Super. Ct. | 1901
Opinion by
In the policy of accident insurance in suit the occupation of the plaintiff was described as “ collector and constable (serving civil writs only).” The policy declared that it was “issued and accepted by the insured subject to the conditions upon the back ” thereof and that “ the terms are not waivable by agents, and any modifications thereof shall not be valid unless indorsed upon the policy by the president, vice president or secretary.” One of the so-called conditions indorsed on the back and made part of the policy was as follows: “ In case of injuries, fatal or otherwise, intentionally inflicted upon the insured (while sane or insane), by himself or any other person, -the measure of the company’s liability shall be a sum equal to the last premium paid, the same being agreed upon as in full settlement.”
The policy was issued on January 15, 1895 and was renewed for another year in January, 1896. In February, 1896, while the plaintiff was serving a civil process, the defendant therein intentionally inflicted serious injury upon the plaintiff by committing upon him an aggravated assault and battery.
The foregoing facts were undisputed and are set forth in the reservation of the question of law; and, subject to the court’s decision of that question, the jury rendered a special verdict in which they found that the plaintiff was entitled to recover $807.14 for total disablement; $20.00 per week for twenty-three weeks, amounting in the aggregate to $460, for partial disablement; and interest from March 2, 1897, amounting to $217.09. Subsequently the court directed judgment for the plaintiff upon the point reserved for the sum of $20.00, this being the amount of the last premium paid, and from this decision the plaintiff appealed.
The point reserved, certainly as to form, is not free from objection (Casey v. Penna. Asphalt Paving Co., 198 Pa. 348; Mayne v. The Fidelity, etc., Co., 198 Pa. 490); but the case was argued upon the theory that, in substance, the question is,
Coming then to the merits of the case; the plaintiff’s contention, as stated by his counsel, is, that he accepted the policy and paid the premium as the result of a clear understanding between him and the company, through its agent, that he was to be compensated for injuries, even if intentionally inflicted by another, provided such injuries occurred during the service by him of a civil writ. Literally this proposition raises no issue either of fact or of law between the plaintiff and the defendant ; for the policy entitled the insured to recover for such injuries but limits the amount.- What the plaintiff really seeks to establish is the fact that the inducing cause for his acceptance' of the policy and payment of the premiums was the agent’s promise or representation that the above quoted provision would not apply, or at least, would not be enforced, if injuries, though intentionally inflicted, were received by the plaintiff during the service by him of civil process. This raises no question of waiver, but of the admissibility and sufficiency of parol evidence to contradict or vary written instruments. The cases in this state in which such evidence has been admitted have been classed under two heads : First, where there was fraud, accident or mistake in the creation of the instrument itself and, second, where there has been an attempt to make a fraudulent use of the instrument, in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed: Phillips v. Meily, 106 Pa. 536. Passing for the present the question of the agent’s authority to bind the company by a parol promise repugnant to the express terms of the instrument, we remark, in the first place, that there is no express evidence that anything was said or done at the time the plaintiff accepted the policy which put him off his guard or induced him not to read it. There is no evidence that he did not read it.' Therefore the presumption is that he accepted the policy with full knowledge of its contents. In the second place there is no evidence that the agent, in express terms, promised or represented that the clause under con
The order directing judgment for plaintiff for $20.00 is affirmed.