348 Pa. 605 | Pa. | 1944
Opinion by
This is an action in assumpsit by Penn Mutual Indemnity Company, appellee, against the Manhattan Mutual Automobile Casualty Company, Inc., appellant, to recover an amount claimed to be due upon unearned insurance premiums assigned to appellee by policyholders formerly insured by appellant, which has discontinued doing business in Pennsylvania. Appellant filed an affidavit of defense and a supplemental affidavit of defense containing new matter. Appellee presented a rule for judgment for want of a sufficient affidavit of defense, and filed a motion to strike off new matter. This appeal is from the order of the court below making the rule absolute.
Manhattan Mutual Automobile Casualty Company, Inc., appellant, is a New York corporation, engaged in the casualty insurance business, and was licensed to do business in Pennsylvania. In February, 1942, it decided to withdraw from this Commonwealth. Notices of the intended cancellation of all policies in Pennsylvania were sent to its policyholders on February 17,1942. An assignment from each policyholder of his or her right to the unearned portion of the premium paid to appellant was obtained by appellee. This action was instituted to recover $2,775.06 due on 159 policies which appellant had cancelled and to replace which appellee has issued its policies. Appellee avers that the policyholders had paid their premiums to appellant or its duly authorized agent; that their policies were properly cancelled through appellant’s agent, William Young, as of February 17, 1942; that by reason of the cancellations appellant owed to the respective policyholders a specified sum as unearned premium; that appellee secured a written assignment to it by the respective policyholder of the unearned premium; and, that due notice of said assign
When two or more affidavits are filed in any case the effect to be given the latest is to be determined by construing all as one affidavit. They must not be self-
The amended and substituted affidavit of defense contains the averment heretofore set forth, that appellant had no knowledge and after reasonable investigation was unable to ascertain whether or not the premiums had been paid to its agent or that the assignments of the unearned premiums were made by the various policyholders to appellee. Appellant relies upon the Act of 1915, P. L. 483, Section 8, as finally amended by the Act of 1935, P. L. 666, Section 1, 12 PS Section 390, which provides, inter alia: “In no event shall either party be required to inquire of the opposite party as to alleged facts the proof of which is under the exclusive control of the opposite party, and, in no event, shall the party demanding proof of such alleged facts be required to state, specifically or otherwise, or to prove what reasonable investigation he has made to obtain the information of which he alleges he has no knowledge; but his affidavit alone shall be deemed sufficient to support his allegation of reasonable investigation.” Appellant contends that a mere recitation of “reasonable investigation” as to the facts and a failure to secure information after such reasonable investigation is sufficient in law to prevent judgment for want of a sufficient affidavit of
Under the circumstances presented, appellant has failed to satisfactorily explain the patent inconsistency in the original and amended affidavits of defense. The order of the court below making the rule for judgment for want of a sufficient affidavit of defense absolute and the entering of judgment in favor of appellee in the admitted amount was proper.
The judgment of the court below is affirmed.