50 Pa. Super. 384 | Pa. Super. Ct. | 1912
Opinion by
The plaintiffs jointly brought this action of assumpsit to recover of the defendant the aggregate amount of certain premiums of insurance which had been paid by them severally at the time they had made application for insurance, upon their respective lives, on December 6, 1909. The insurance company filed an affidavit of defense, which the court below held to be insufficient and entered judgment in favor of the plaintiffs, and from that judgment the defendant appeals.
The plaintiffs in their statement based their alleged right to recover upon two grounds: (1) That on April 7, 1910, the plaintiffs had notified the defendant that their applications for insurance upon their respective lives were withdrawn, and that the company having failed to tender the policies applied for prior to that date the plaintiffs were entitled to a return of the premiums; (2) That at the time the plaintiffs had made the applications for insurance and paid the premiums to Billmier, the general
The affidavit of defense alleged that the only contracts entered into by the defendant with the plaintiffs were contracts of insurance based upon four applications made by the plaintiffs severally, on December 6,1909, as follows: by Reed for $10,000, by Kennerdell for $5,000 insurance; by Gummert $5,000 insurance, and by Duster $5,000 insurance. That said applications were accepted by the company, that the premiums had been paid by the plaintiffs, respectively, to Billmier, the agent of the company at Pittsburg, who had paid the same less his commissions to the defendant company; that policies were duly issued in accordance with the applications and placed in the hands of Billmier for delivery to the insured, respectively, that the latter tendered the policies to the insured, respectively, in December, 1909, and that said policies were duly entered upon the books of the company and were in full force at the date the affidavit of defense was filed. This was a specific answer to the averment of the statement of claim that the defendant had failed to tender the policies for which the applications had been made and the premiums paid, and disposes of the first ground, above stated, upon which the plaintiffs seek to recover.
The second reason for which plaintiffs alleged a right to recover, even if the policies had, in the first instance, become binding upon the company, was based upon the following written agreement:
“Pittsburgh, Pa., Dec. 6th, 1909.
“Mess. C. N. Reed, E. H. Kennerdell, Thomas M. Gummert and John Duster have this day applied to the Phila*388 delphia Life Insurance Co. of Phila., Pa., for a loan of $25,000.00 to cover on their property situate on Corbet and East Seventh Ave., Tarentum, Pa. And for life insurance to the amount of $25,000.00 and I hereby acknowledge receipt of $1108.90 being in full for the first year premium on the said Life Ins. policies. In case the said loan is not accepted by the said company within thirty days from the date hereof, I hereby agree to return the said $1108.90, the first premium, and the life insurance to be cancelled forthwith, without any cost.
“ Geo. G. Billmier, Geni. Agt.”
The plaintiffs attached a copy of this agreement to their statement and averred that in February, 1910, they had requested the defendant to comply with the terms thereof, that the insurance company notified the plaintiffs that théy had no knowledge of said agreement and refused to comply with its terms. They aver that because of the failure of the company to make the loan of $25,000, they are now entitled, by force of the agreement quoted, to recover, in this joint action, the entire premiums paid by them individually upon the insurance policies without any deduction for the time the insurance remained in force. It is proper here to observe that the plaintiffs were content in their statement merely to aver that the defendant corporation entered into this contract “by its general agent, George G. Billmier”; the statement contains no other averment as to the authority of Billmier to bind the company, nor does it state any course of dealing from which an authority could be implied.
The affidavit of defense, as to this branch of the case, asserts that Billmier “had no authority from said defendant, express or implied, to enter into this agreement.” The affidavit specifically set forth the limits of the authority of Billmier to act for the company, thus: “Said Billmier was employed and authorized by said defendant to act as its agent only for the following purposes, to wit: to canvass for applications for life insurance and to for
The applications for insurance were made on Decern
The contract was collateral to the contract of insurance, not being referred to either in the application or the policy,
The judgment is reversed with a procedendo.