118 Pa. 415 | Pa. | 1888
Opinión,
This action was brought upon a policy of insurance against loss by fire. The defence was the non-payment of the premium. The important question raised by the assignments of error is, whether there was evidence upon this subject that should go to the jury. The facts were not involved in controversy and are as follows: Speer, acting for the plaintiff, applied to Conway, an insurance broker and solicitor of risks, for insurance upon the plaintiff’s property. Conway took the risks to Biggert, who was an insurance agent and the general agent in Pennsylvania for the defendant company, to be placed in suitable companies. As general agent he placed $1,500 of the amount desired in the defendant company and countersigned and delivered a policy therefor. Conway had $105 of the plaintiff’s money in his hands, with instructions to use it for paying premiums on policies of insurance. He communicated this fact to Biggert, and offered to pay the premium on this policy amounting to $90, but Biggert, who was negotiating for another policy of like amount upon the same property, said it might just as well remain in the hands of Conway until the other policy was obtained, when both could be paid for at the same time. The premium was then charged on Biggert’s books to Conway, in whose hands he knew the money to be, and the
This is not therefore the case of one who attempts to secure the benefit of insurance without the payment of the premium; for the money with which to pay it had left the hands of the assured and been placed in those of the broker before the policy was obtained. The real question is whether the assured, notwithstanding the payment of the money by and the delivering of the policy to him, is to lose the benefit of his contract by reason of the course of dealing between the intermediate agents. Speer had paid to Conway the broker; Conway had offered the money to Biggert, the general agent of the defendant; Biggert had charged it up to Conway and paid his principal in the ordinary course of his business ; the policy had been delivered. What remained to be done except for Biggert and Conway to settle the transaction between themselves, which each had in effect settled with his principal ?
We are decidedly of opinion that upon this state of facts the question of payment was for the jury. It was not a question whether the adjuster had waived or could waive a condition in the policy, nor whether Biggert, the general agent, had power to change the terms or conditions of insurance; but whether there was actual payment. As to the assured, there was no doubt, for it was admitted, that the money had left Speer’s hands for this very purpose. As to the insurer, there was the fact that the money had been actually paid in the usual way by Biggert and received without objection. The open question was over the credit given by Biggert to Conway. If this had been given in the usual manner, making Conway his debtor for the amount which he paid for him to defendant, the jury would have been fully justified in finding the fact that the premium was paid. This was for the jury. The giving of a binding instruction to find for the defendant was therefore error, and for this the case must go back for another trial.
Judgment reversed, and venire facias de novo awarded.
