31 Pa. Super. 29 | Pa. Super. Ct. | 1906
Opinion by
The plaintiff applied for insurance upon his dwelling house, pump-house, household furniture and wearing apparel, situated upon his farm in Penn township, Lycoming county, to E. W. Michael,‘agent of the defendant company residing at Hughesville, who made an examination of the premises, received the application, premium and premium note, and forwarded the same to the home office of the defendant company. The company executed a policy dated May 4,1903, insuring the dwelling house in the sum of $800, the pump house in the sum of $50.00, the household furniture in the sum of $200, and the wearing apparel in the sum of $50.00. The defendant company mailed this policy directly to the plaintiff, who received and has since retained it. The policy contained the following covenant:' “ This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” ' There was, at the time the policy issued, no other insurance upon the property, and the contract was valid at the time it was executed. The plaintiff on October 8,1903, procured three additional policies of insurance on the same property, one in the Citizens’ Insurance Company, another in the German Fire Insurance Company and the third in the Lumberman’s & Merchants’ Insurance Company, aggregating $1,600 on the dwelling house, $400 on furniture and wearing apparel, and $75.00 on the pump house, through the agency of a Mr. Kuester, at Williamsport. No agreement relating to this additional insurance was indorsed upon or added to the policy of the defendant company, as required by the covenant above recited. The property insured was totally destroyed by fire on November 16,1903. The plaintiff brought this action upon the policy and there was a verdict in his favor for $793.45, the court reserving the question of law, “ whether there is any evidence in this case on which the plaintiff is entitled to recover.” The court entered judgment in favor of the defendant non obstante veredicto and the plaintiff appeals.
It was a fundamental condition of the contract that the taking out of additional insurance rendered the policy void, but incorporated in the terms of this condition was the provision that by an agreement indorsed upon the policyit might be confirmed and continued, concurrently with the insurance after-wards obtained. This regulation was a reasonable and proper one, for otherwise the company would be obliged to insure parties without any knowledge of the amount of insurance carried upon the property. The failure of the plaintiff to have the additional insurance noted upon the policy was not a mere formal defect, but a breach of a substantial condition of the insurance,, and must be fatal to his claim unless there is something else in the case to avert such a result. The appellant attempted to show that the defendant company had waived this condition of the policy, or was estopped to assert it. The plaintiff testified that upon his return from Williamsport, upon the day he took out the additional insurance, he met E. W. Michael, who as agent of the defendant company had taken his application for this policy and transmitted it the company, upon the street in Hughesville, and thus narrates what then occurred: “ I walked up street with him and I told him I had taken out additional insurance with another man in Williamsport to-day. He slapped me on the shoulder and he says, ‘ I am glad of it.’ He says, ‘ Mr. Smith, if you happen to meet with a loss you will see which one has the most red tape in settling. I know our company is all right, mostly farmers.’ He seemed to be well pleased that I had taken out the additional insurance.” This was the only evidence which afforded any suggestion of a foundation for the allegation of the plaintiff that the defendant company had waived the provisions of the contract or was es-topped to assert them,. The plaintiff did testify that he had
Ought the question of the liability of the defendant to have been submitted to the jury upon the evidence presented ? This policy had been in force several months at the time the additional insurance was taken, and the case is altogether different from those in which an insurance company, or its agent duly authorized to accept risks, issues a policy and accepts payment of a premium with notice and knowledge that the building is already covered by other insurance. The question presented is entirely different from that of an alleged waiver by the president, secretary or other executive officer of an insurance company, notice to whom is notice to the company itself : Wilson v. Insurance Company, 174 Pa. 554; Bowman v. Mutual Fire Insurance Company, 203 Pa. 150; Brumbaugh v. Fire Insurance Company, 20 Pa. Superior Ct. 144. When an insurance company is, under the provisions of the policy, discharged from liability, responsibility for the loss will not reattach by waiver without proof of authority in the party whose act of waiver is relied upon : Mentz v. Lancaster Fire Insurance Company, 79 Pa. 475; Imperial Fire Insurance Company v. Dunham, 117 Pa. 460; Gould v. Insurance Company, 134 Pa. 570; McFarland v. Insurance Company, 134 Pa. 590. The policy in question was issued by a mutual company in the mutual form, and by the express covenants of the agreement the plaintiff became a member of the company and was bound to inform himself of its rules and regulations: Mitchell v. Lycoming Mutual Fire Insurance Company, 51 Pa. 402. Among the bylaws of the company indorsed on the policy was one defining the powers of agents of the company, and limiting such powers to the taking of applications, receiving membership fees, and collecting assessments. This by-law, however, is to be construed in connection with the last clause of the policy, the eL feet of which is to give to agents the power to write upon, or attach to the policy an agreement providing for additional insurance. The power of the agent Michael, as to this particular..
The judgment is affirmed.