24 A.2d 738 | Pa. Super. Ct. | 1941
Argued November 11, 1941. On August 17, 1908, defendant, a mutual fire insurance company, issued to plaintiff its standard perpetual fire insurance policy covering certain buildings which were destroyed by fire on September 3, 1938. Defendant refused to pay the loss, and plaintiff brought an action in assumpsit on the policy. The defense was that between October 30, 1924, and September 1, 1925, the policy was canceled, and that no assessments had been paid on the policy since 1924. The court below directed *83 a verdict in favor of plaintiff. Defendant's motion for judgment n.o.v. was overruled, and its rule for a new trial was subsequently discharged. From the judgment entered on the verdict, defendant has appealed.
The question is whether there was a valid cancellation of the policy.
At the trial plaintiff made out a prima facie case by offering in evidence certain portions of the pleadings including the policy. It was thereby established, inter alia, that the policy of insurance, No. 30,749, was a perpetual policy issued on August 17, 1908; that the amount of it was $800; that fire destroyed the property covered thereby on September 3, 1938; that the loss was equal to the amount of the policy; that there was no other insurance on the property; and that plaintiff filed due proofs of loss with defendant. Plaintiff rested. The burden was then on defendant to prove an effective cancellation of the policy before the loss (Aetna Insurance Co. v. Kennedy,
We find no factual issue arising from the evidence, and we agree that it was proper for the trial judge to direct a verdict for plaintiff.
There was no evidence that the policy was canceled by defendant at the request of plaintiff, or that he neglected or refused to pay any assessment which had been made on the policy. As to cancellation by defendant, the policy, which was introduced in evidence, provides:
"VI. Cancellation by Association. — The association *84 may, at any time, terminate this insurance and cancel this policy, after giving fifteen days' notice to the assured of its intention so to do. . . . . ."
Annexed to the policy and made a part thereof are "Special Conditions and By-laws of the Association," which provide, inter alia:
"6. Suspension or Cancellation of Policy. This policy shall become suspended upon neglect or refusal of the insured to pay any assessment made on same for thirty days after public notice of the assessment has been given, . . . . . . and if the assessments are not paid at the expiration of . . . . . . ninety days, then this policy shall be considered cancelled, and so marked upon the books of the association. . . . . . .
"8. Association's Right to Cancel. This association reserves the right to cancel this policy upon evidence satisfactory to the Board of Directors of the violation of any of the rules or regulations herein set forth, notice thereof to be given the assured. Any policy, because of an increase of risk . . . . . . may be cancelled by the Board of Directors, 15 days' notice thereof having been given the insured."
Defendant's books were offered in evidence, and it is upon them that defendant was obliged to rely to sustain its defense. Plaintiff himself testified that he had never requested cancellation of the policy, that he never received any notice of cancellation, and that he had received no notice of an assessment since 1924. Defendant's officers testified that they did not know whether any notice of cancellation had ever been sent to plaintiff; that no assessment had been made on the policy since 1924; and that no notice of any assessment which was not paid had been given to plaintiff. Plaintiff has had possession of the policy from the time of issue.
The history and record of the policy in question were in these books of defendant. In the journal was recorded its issue on August 17, 1908; in the tax book all the assessments *85 were listed, and defendant's record as to the policy is as follows:
Total amount paid
1916 1917 1918 1919 1920
Page Jour. Names Insurance Tax Tax Tax Tax Tax C 661 13 Schock, Clarence, 30749 800. C 2.40 2.24 2.24 2.00 2.24
1921 1922 1923 1924 1925
Tax Tax Tax Tax Tax
2.60 3.20 3.20 2.80 C
It is conceded that no record of assessments on the policy from 1908 to 1915, inclusive, was shown, and that no assessment was made after 1924. The assessments made from 1916 to 1924, inclusive, were paid by plaintiff. It is argued on behalf of defendant that the burden was upon plaintiff to prove that he had complied with the policy by paying "the several sums from time to time assessed . . . . . . until such policy is annulled and his membership terminated." Obviously if no assessments were made from 1924 to the date of the fire the argument is meaningless. Besides, nonpayment of assessments is an affirmative defense, and the burden of proof thus rested on defendant. Tkatch v. Knightsand Ladies of Security,
Accepting defendant's records as admissible1 they indicate no more than that defendant may have considered the policy canceled. The records of defendant afforded no proof that the policy had been canceled after notice2 in accordance with the provisions of the policy, that plaintiff had requested a cancellation of the policy, or that it could be considered canceled for nonpayment of any assessment or assessments, and they raise no such presumptions. Cancellation of an insurance contract means termination of the insurance in accordance with the cancellation clauses of the policy. Otterbein v. Babor Comeau Co. et al.,
The authorities upon which defendant relies are not in point.People's Fire Insurance Co. v. Hartshorne Co.,
In Stockley v. Schwerdfeger,
All the assignments of error are overruled.
Judgment is affirmed.
