80 Pa. Super. 492 | Pa. Super. Ct. | 1923
Opinion by
This is an action upon a policy of insurance on an automobile to recover loss resulting from three separate collisions. From a judgment entered on a verdict for the plaintiff comes this appeal. The errors assigned are the refusal of defendant’s point for binding instructions and judgment for defendant n. o. v. The insufficiency of the plaintiff’s case is urged on several grounds. But two of these need to be considered. The policy sued on contains these express stipulations:
“This policy shall cease and terminate......(3) if the automobile described be used for carrying passengers for compensation or be rented or hired without the written consent of the company endorsed thereon.”
“Statement 7. The automobile described will not be rented to others or used to carry passengers for a consideration, except......No exceptions.”"
The policy issued October 13, 1916. The following facts are undisputed: The dates of the three accidents resulting in the loss sued for were May 26, 1917; June 17, 1917, and September 3, 1917. On April 25, 1917, the plaintiff filed with the city clerk of the City of Chester an application for and received a “Jitney Automobile” permit, which we understand to be a license to carry passengers for hire. Prior to the accident in June, the automobile had been used to carry passengers for hire. Upon this showing, the interpretation of the provisions of the policy quoted above was for the court. The learned trial judge, adopting the views of the other member of the court who tried the case on a former occasion, held that unless the automobile was being used for a prohibited use at the time the accident took place, it was not a defense against the claim. With this con
We have examined McClure v. Mutual Fire Insurance Company of Chester County, 242 Pa. 59, and the other case cited by the appellee on this point. It is sufficient to say that they are all distinguishable in material particulars from the case at bar. The rule of reasonable enforcement of insurance contracts as adopted in McClure v. Mutual Fire Insurance Company of Chester County, supra, must yield in this case t'o the plainly expressed intention of the parties to declare a forfeiture. In that case the controlling question raised was whether t'he policy was rendered void because some prohibited articles enumerated therein were kept' upon the premises during the life of the insurance contract. It appeared, however, that this occurred at least two years prior to the fire and the insured paid two annual premiums and received two renewal receipts after the ceasing to keep the prohibited articles on the premises. It was held that the policy was suspended during the time the prohibited articles were kept on the premises and was revived by the discontinuance of the keeping or use of the prohibited articles and by what subsequently occurred between the parties. The case is distinguished from the case at bar by these facts.
The judgment is reversed and the record remitted to the court below, with direction to enter a judgment in favor of the defendant notwithstanding the verdict.