30 Pa. 315 | Pa. | 1858
The opinion of the court was delivered by
— This case was tried with very little regard to the issues which had been formed between the parties. The plaintiff below declared upon a policy of insurance. To this declaration
It is plain that the breaches of the warranty pleaded, were not put in issue. They were admitted. Nor was the existence of the warranty itself traversed, except so far as the inducement of the plaintiff’s replication amounted to a denial of it. What were then the facts in issue? Nothing more than knowledge by the defendants of the manner in which the buildings insured were used at the time when the policy was made. The single question was, whether the defendants knew of the occupancy of the buildings as boarding-houses for disorderly persons, not tenants, and as a store, candy or cake shop, when they subscribed the policy. Yet under this simple issue, the assertion and denial of a single fact, the court admitted evidence of the manner in which the property was occupied; and, also, evidence that the mode of occupation, unlike that stated in the warranty, was known to the agents of the defendants, constituted only to receive applications and make surveys, but with no power to make contracts. Under the same issues the jury were instructed, that knowledge by such agents was knowledge by the defendants; that if the agents knew the
The decision in The Howard Fire Insurance Company v. Bruner, 11 Harris 50, is erroneously supposed to assert a different doctrine. Far otherwise. It was made upon the basis that the assured had made no warranty. There the defendants’ agents had authority to take risks. Hot, as in this case, merely to receive applications and make surveys. True, the assured had put his name to what was an application in form, but which, under the circumstances, was held to be no application; nothing but the act of the insurer. The case was not intended to obliterate the distinction between a representation and a warranty.
The same disregard of the real issue joined between the parties under the third plea, is apparent both in the admission of evidence and in the charge of the court. The declaration averred that the application and survey were a part of the policy, and that it was agreed by the parties thereto that in case the insured buildings should, at any time after the making and during the continuance of the insurance, be appropriated, applied, or used, to or for the purpose of carrying on or exercising therein any trade, business, or vocation, which would in any way increase the risk as described in the application and survey (unless such appropriation should be agreed to by the insurers in writing, and added to or endorsed upon the policy), then and thenceforth the policy should cease and be of no effect. The defendants’ third plea averred that after the policy was made, one of the buildings insured was, with the consent of the assured, appropriated to carrying on the business of >, varnishing, finishing, and vending cabinet furniture and wares, without the consent of the defendants in writing added to or endorsed upon the policy, whereas the risk described in the application and survey was upon buildings used as dwellings by tenants and not otherwise. And the plea charged that such new appro
Nor did the court err alone in admitting such evidence. The same mistake was made in the instruction given to the jury. With an issue thus formed, so precise, so single, upon which the parties went to trial, we are unable to see why the jury should have been told that they were to determine what the risk described in the written application and survey was, and that, in determining, they might inquire whether there had been a misdescription by the agents of the company — a mutual mistake; whether, therefore, the application should be reformed, and whether the risk which was actually assured was increased by the change. In other words, the jury were instructed that they might apply a different standard from that which the parties had agreed to accept. All this was erroneous.
It is freely admitted that in a proper case, and on sufficient evidence, equity will decree the reform of a policy; but, in this case, the plaintiff, by tendering the issue which he did, asked for no reform, and, if he had asked it, there was no evidence to warrant it. Mere mutual knowledge by the assured and the agents of the insurer of the falsity of a fact warranted, is entirely inadequate to induce a reformation of the policy so as to make it conform with the truth. It is rather evidence of guilty collusion between the agents and the assured, from which the latter can derive no advantage. This was held in Smith v. Insurance Company, 12 Harris 320. Nor is it easy to see that there is any difference between suggestio falsi and suppressio veri, if the fact suppressed be material to the risk. In both cases the underwriter is equally wronged, and the assured is, in both, equally a party to the wrong.
We think, also, that the court erred in sustaining the plaintiff’s demurrer to the rejoinder of the defendants to the replication to
We have not thought it necessary to examine separately all the very numerous assignments of error which appear upon this record. They are thirty-four in number. What has been said sufficiently disposes of them all, except the fourth, eleventh, and fourteenth; and, in the view we take of the case, those become entirely immaterial.
We add only that the conclusion to which we have come is, that the jury ought to have been instructed that, upon the whole evidence in the cause, the verdict should be for the defendants.
Judgment reversed and venire de novo awarded.