109 Pa. 507 | Pa. | 1885
delivered the opinion of the court,
This was an action of covenant upon' a policy of insurance. The plaintiff was insured in the defendant company upon his house and furniture as follows: $1,000 upon his house and $200 upon his furniture. The house was valued in the application at $1,400 ; the furniture at $400. On the night of August 7th, 1877, while the plaintiff and his wife were absent from home, the house and all its contents were destroyed by fire.
Upon the trial below the learned judge gave the jury a binding instruction to find for the defendant. If for any reason this instruction was proper, we would not reverse even though some technical errors appeared upon the trial.
It was claimed by the defendant that there was a gross over-valuation of the property insured, and that incumbrances had been placed upon the property after the date of the policy and before the fire, which reduced the real interest of the insured to an amount less than the sum insured, and that these were both breaches of the warranty contained in the policy.
The application contained this provision: “and it is expressly understood and agreed that this application and survey shall be a warranty on the part of the assured and
The thirteenth interrogatory in the application was as follows: “If any judgments, liens or mortgages, state particularly the amount, and whether there is any insurance by mortgagee.” To which the assured made answer: “I have $500 claim on one acre of ground against, but not on building.”
The thirteenth “ condition of insurance ” provided inter alia : “ And should there during the life of this policy, an incumbrance fall, or be executed upon the property insured sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall be void.”
This provision is based upon the theory, to state it mildly, that the owner of a house, incumbered to a part or the whole of its value, has not the same motive to preserve his property from fire as he would have .in case it were free from incumbrance. There is nothing in the provision itself that offends public policy or good morals.
To meet the allegation of over valuation the plaintiff alleged that he was an ignorant German and did not understand the English language. He also offered to prove (see sixth assignment) “That at the time of the application for insurance, Frank Laubach, the agent of the insurance company, made all the answers in his own handwriting to the questions in the application, and stated to the witness that on the payment of his premium he would get $1,200 if a fire occurred by which his property was totally destroyed, and that Frank Laubach valued the property at $1,400 for the building and $400 for his household and kitchen furniture, making in. all $1,800, and that Frank Laubach fixed the amount of insurance, which the company would take at $1,200, and based the premium thereupon.”
This offer of evidence was rejected by the court.
We do not assent to the proposition that the offer was incompetent because Laubach was the agent of the assured in filling up the application and forwarding it to the company. He was not the agent of the assured. The latter had not employed him for any purpose. He was the agent of the defendant company and as such called upon the assured and solicited a policjq and having obtained his consent, proceeded to fill up the application for him to sign. As to all these preliminary matters' the person soliciting the insurance is the agent of the company. So much was said in Columbia Insu
But the difficulty here lies deeper. It was competent, under the authorities, to show that Laubach, the agent, had deceived the assured, when he came to fill up the application, either by a misrepresentation of facts, and by setting down false answers in place of those that had been given. But the offer does not go to this extent. It shows no fraud practised upon the assured. On the contrary, if the agent practised a fraud, it was a fraud upon the company, by inducing them to issue a policy upon property largely in excess of its value, for the sake of the commissions.
This brings us to the question of what was the real value of the property. I give what arc the undisputed facts. The building insured was 18x22 feet, two and a half stories high. It
The value of the property bears closely upon the question of the incumbrances. The learned judge charged the jury (see 11th assignment), that: “Now, the undisputed evidence in this case is that after the date of the policy and before the fire, a number of judgments were entered up against the insured, which reduced the real value of the property insured below the amount of the insurance. It is not even pretended here, that the company were notified of these incumbrances, and there is no explanation or excuse given for want of notice. The 13th condition of the policy is one of the vital conditions upon which the company agreed to be bound to pay the amount of the insurance. It has not been complied with, and therefore there can be no recovery in this action upon the part of the plaintiff.”
The learned judge was slightly inaccurate in this statement. One of the judgments to which he evidently referred was the Yeager judgment for $668.55, which was not entered until after the fire, and was for the same debt secured by a mortgage, which the assured refers to as a “ claim of $500 ” in his application. We throw this out of the case. In point of fact there were two claims entered against the property during the life of the policy, viz; a judgment of George Snyder for the sum of $50, and a mechanics’ lien of $62.50. There are authorities in New York and elsewhere which hold
There was an offer to prove that the assured informed the agent at the time the application was mudo that there were incumbrances upon the property, and that the agent told him that would make no difference. This offer the court rejected. See eighth assignment.
In point of fact there -were no incumbrances upon the property at that time, except the one noted in the application. In the light of this the offer was properly rejected. It had no significance.
This view of the case renders a discussion of the remaining assignments unnecessary.
Judgment affirmed.