258 Pa. 319 | Pa. | 1917
Opinion by
The defense of the appellant in this action is that the insurance policy issued by it to the appellee had been cancelled before the fire for nonpayment of premium due. The jury found it had been cancelled for that reason, and their verdict was accordingly in favor of the defendant. Subsequently a motion was made for a new trial, which was withdrawn, and the facts not being in dispute, plaintiff and defendant agreed that the question of the liability of the latter should be determined on a motion by the former for judgment non obstante veredicto. The
While the facts were not in dispute, the learned trial judge, in his charge to the jury and in his opinion sustaining plaintiff’s motion for judgment n. O'. v., stated that the policy issued by the defendant contained a receipt in full for the payment of the premium. This was an inadvertence, for no receipt for the same is to be found in the policy, and the misapprehension of what appeared in it may have helped to mislead the court below.
The policy was for the insurance of appellee’s property for three years from August 9,1913. It is admitted that neither he nor any one for him ever actually paid the premium for which it calls. His contention, sustained by the court below, was that he had paid the premium by surrendering to insurance brokers, who were the agents for the company to collect it, certain cancelled fire insurance policies issued by other companies, upon which there were due him unearned premiums, to be collected by the brokers in payment of the premium due on the policy in suit. Whether the judgment for the plaintiff was properly entered is to be determined, in' view of all the undisputed evidence in the case, under the following clause in the policy relating to its cancellation: “This policy shall be cancelled at any time at the request of the insured; or Jby the company by giving five days’ notice of such cancellation. If this policy shall be can-celled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company by giving notice it shall retain only the pro rata premium.”
Shortly after the brokers delivered the policy to the appellee they sent him a bill for $15, the premium due ¡on ,
The brokers never collected $12.60, the amount of the unearned premiums on the cancelled policies, and never told the insured that they had collected them. In response to their repeated demands for these policies, they finally received them December 28, 1913, and sent them to the agent of the companies which had issued them, that he might collect and remit the unearned premiums. It does not appear that he collected them. If he did, he failed to remit them to the brokers. It seems that he had absconded as a defaulter.
Under the foregoing undisputed facts, the learned court below was of opinion that the failure of the brokers to collect the unearned premiums on the cancelled policies estopped the insurance company- from defending on the ground that the premium on the policy in suit had not been actually paid; that its cancellation, .without returning to the insured the unearned premium on it, was invalid, and that it was, therefore, in force at the
See & Depew, the insurance brokers, who were the agents of the insurance company for the delivery of the policy, were its agents for the collection of the premium on it: Lebanon Mutual Insurance Co. v. Erb, 112 Pa. 149; and if the insured had promptly sent them the can-celled policies, for the purpose of enabling them to collect the unearned premiums due thereon and appropriating the same to the payment of the premium on the policy in suit, and they had actually collected the same, the amount of the unearned premiums would have been payment on account of the said premium. But for more than four months, during which period the appellee knew he had not paid the premium on the policy in suit, he refused even to send the cancelled policies to the company’s agents, in the face of their repeated demands for them. True, by the appellant’s failure to cancel the policy, the appellee had been given credit for the premium, which, however, was merely a waiver of payment until the withdrawal of the credit.
On January 7,1914, the appellee was notified, in writing, by the appellant that the premium on the policy was unpaid, and that unless he paid it within five days, thp policy would be cancelled and demand made upon him for the earned premium. Here was distinct notice to him that the premium had not been paid and of the intention to cancel the policy for its nonpayment. This notice he utterly ignored. After he had been given an opportunity, extending over twenty-nine days, to pay the premium, the company, on February 5, 1914, formally cancelled the policy; but, notwithstanding this, the claim of the appellee is that it was still in force three days later, when bis property was burned, because the appellant had not returned to him the unearned portion of the premium on it. The condition inserted in his policy, upon which he accepted it, was that it might be cancelled by the appellant by giving five days’ notice of
The assignments of error are sustained, and judgment is here entered for the defendant on the verdict in its favor.