200 A. 196 | Pa. Super. Ct. | 1938
Argued April 20, 1938. This is an appeal by defendant, from a judgment on a verdict in favor of Mary Spern, plaintiff, in an action of assumpsit on a fire insurance policy issued to her by the Globe and Republic Insurance Co., appellant, on a brick building situate on the west side of Highway St., Yukon, Pa.
The title to the property was in Sam Spern and Mary Spern, husband and wife, by entireties. The policy contains the following clause: "This entire policy shall be void, unless otherwise provided by agreement in writing added thereto, (a) if the interest of the insured be other than unconditional and sole ownership. . . . . ." There was no agreement in writing either added to the policy or otherwise executed modifying this clause of the contract.
The plaintiff's amended statement of claim, para. 8, contains the following averment: "The said policy of insurance was taken out in the name of Mary Spern, the plaintiff above named, with the knowledge and consent of the agent of the defendant corporation that the said property was owned by Mary Spern and her husband, Samuel Spern as an estate by entirety."
This averment is denied in defendant's affidavit of defense in which defendant denied a right of recovery by reason, inter alia, of the provision in the policy quoted above.
Upon the trial of that case, Sam Spern, husband of plaintiff, testified that he had gone to the office of Mr. Mitchell, the agent for the company, and told him that he desired to take out a policy of fire insurance on this property and that he disclosed to the agent that the *597 title to the same was in him and his wife; that he received the policy of insurance and placed it in a box in the bank; that he was unable to read and did not know that the policy had not been written in the name of both himself and his wife.
J.L. Mitchell, the agent for the defendant, contradicted the testimony of Sam Spern and testified that Spern came to his office with one Julia Slavensky; that the latter introduced Spern as a man desiring to obtain a fire insurance policy on a building that he owned; that when Mitchell started to write the policy, Julia Slavensky stated "his wife owned this property"; that Mitchell then asked Spern whose name it was in and Spern said "Mary Spern"; that he then proceeded to write the policy in the name of Mary Spern and delivered it to the husband. Julia Slavensky was not called as a witness by either party. A request, ex parte defendant, for binding instructions was refused.
The court below submitted to the jury the question of fact arising out of the testimony and instructed the jury that if it found that Sam Spern had disclosed to the agent, Mitchell, that the title to this property was in himself and wife, the company would now be estopped from setting up this ownership clause in the policy as a defense. The trial resulted in a verdict for plaintiff in the sum of $891.43. Motion for judgment non obstante veredicto was overruled in an opinion by CHAMBERS, P.J., 53d Judicial District, specially presiding.
The only assignments of error which are pressed by appellant are the refusal of binding instructions, and the overruling of the motion for judgment non obstante veredicto.
Appellant contends that the evidence on the question produced by plaintiff is not sufficient in law to warrant a finding that the defendant knew, or was affected with knowledge, that the title to the building insured by defendant *598
was held by plaintiff and her husband as tenants by entireties; that the present case presents an instance of modification by parol or reformation by parol evidence, of a written contract and requires therefore, a high degree of evidence which must be from more than one interested witness, and clear and precise in character. In support of its position, appellant cites the case of Livingstone v. Boston Insurance Co.,
"True, the terms of the policy cannot be reformed by the oath of the insured contradicted by that of the agent; . . . . . ."
We do not consider the expression referred to as controlling in the instant case. In the case of Evans v. Metropolitan Life Ins.Co.,
In Hoffman v. Mutual Fire Insurance Co. of Reading,
The verdict in the instant case determines in favor of plaintiff the fact that her husband informed Mr. Mitchell, agent of the company, at the time of the writing of the policy, that the title to the property was in the names of himself and his wife.
Quoting the language of former President Judge TREXLER, inLitto v. Public Fire Ins. Co.,
See also Logar v. Insurance Co.,
The court below, following the decisions both in our court as well as in the Supreme Court, disposed of the case on the question of estoppel and not on the reformation of a contract.
We have read with a great deal of interest the very learned brief of counsel for appellant. What he asks us to do is to overrule well-recognized cases of the Supreme Court decisive of the question involved. This is beyond our authority.
We find no reversible error in the disposition of the case by the court below.
The assignments of error are overruled and judgment affirmed. *601