6 Pa. Super. 65 | Pa. Super. Ct. | 1897
Opinion by
These two cases'were tried together, and one appeal is taken by consent. The plaintiff brought suit on a policy of insurance against each of these defendants to recover from each the sum of $750. The policies issued were of the standard form and described the property as follows: “ $1,500 on the frame stable ■ building and additions thereto, on the north side of Jersey avenue near Charles street, Gloucester City, N. J., other insurance permitted without notice until required.” The plaintiff was the owner of two stables, of equal value, which were used for a common purpose and which were separated from each other by a distanoe of ten or twelve feet.
The plaintiff contended that the policies were intended to cover the two stables and in this he was supported on the trial by the direct testimony of the local agent of the defendant companies, and this fact was found by the jury in favor of the plaintiff. The description of the property was made on typewritten slips, in the office of the local agent, and these slips were signed by him in the name of his firm, and then affixed to the printed policy in a blank space provided for that use. The verdict determines as a fact that in the typewritten description the word “building” instead of “buildings” was erroneously used, and the whole controversy arises from this alleged error.
The first and second assignments of error are not considered for the reason that they are framed in disregard of Rule 17 of this court: Denniston v. Phila. Co., 1 Pa. Superior Ct. 599; Com. v. Smith, 2 Pa. Superior Ct. 474, and counsel violate this rule at their peril in this as the similar rule in the Supreme Court : Raymond v. Schoonover, 181 Pa. 352. The case was fairly presented to the jury by the learned trial judge: “ If you believe that these policies were made out in the shape that they are, by accident and oversight, that it was the intention of the person that applied, and the companies who issued these policies, to cover the two stables instead of one — then the verdict ought to be for the plaintiff.”
There was no written application in this case; the local agent was familiar with the premises and intended to have the two policies cover just what the instired desired — both stables. The erroneous description was the act of the agent alone, in the face of light and knowledge, and it was unknown to the insured until after the loss occurred. The defendant cannot be released from its contract because the plaintiff, acting in good faith, accepted without examination the policy written by its agent: Dowling v. Merchants Ins. Co., 168 Pa. 234.
After the verdict was rendered, the defendant submitted some ex parte affidavits as ground for a new trial, but the court below refused to be moved by them. Upon an examination of these affidavits, and applying them to the proof adduced on the trial we do not feel warranted in interfering with the decree entered; as, except in clear cases of abuse of discretion, refusal of the court below to grant a new trial is not assignable for error, and there is nothing in this case to make it an exception to the rule: De Grote v. De Grote, 175 Pa. 50.
It does not necessarily follow that the perjury of a witness
The assignments of error are each overruled and the judgment is affirmed.