87 Pa. Super. 349 | Pa. Super. Ct. | 1925
Argued October 27, 1925. This is an action in assumpsit on a policy of fire insurance. Plaintiff recovered a verdict and defendant appeals. The only errors assigned are the refusal of defendant's point for binding instructions and its motion for judgment n.o.v.
The evidence warrants the following statement of the material facts: Plaintiff held a judgment note against G.B. Kephart in the sum of $4500. It was entered in the Court of Common Pleas of Clearfield County. When Kephart gave the note, September 5, 1922, he signed, sealed, acknowledged and delivered to plaintiff a writing by which, in consideration of the $4500 loaned to him by plaintiff, he granted, assigned and set over to plaintiff, his heirs and assigns, all his right, title and interest in the real estate and personal property covered by the policy in suit. The assignment provided that upon the payment of the note, with interest, within five years from the date thereof, plaintiff should reassign the property to Kephart. A short time before July 7, 1924, one Redding, *351 the authorized agent of defendant, called upon one Davis, who represented plaintiff, and stated to him that the insurance which Kephart carried on his property was about to expire, that Kephart did not intend to renew it, and suggested that plaintiff could be protected in case of fire by personally carrying insurance on Kephart's property. Davis directed Redding to issue a policy to protect plaintiff's interest as a judgment creditor of Kephart. On July 7, 1924, Redding issued a policy in the sum of $2250 in the standard form, in which Kephart was named as the owner of the real and personal property covered and the loss, if any, was made "payable to H.B. Swoope, judgment creditor, as his interest may appear." The policy was delivered to plaintiff and he paid the premium. At the same time Redding, as agent of the London Assurance Corporation, issued and delivered to plaintiff, on the same terms, a policy identical in form and amount of coverage, with the policy in suit. It did not appear that Kephart knew these policies had been issued. Subsequent to their issuance and delivery to plaintiff, Kephart secured other insurance on the property in two other companies without plaintiff's knowledge. The property insured, real and personal, was totally destroyed by fire on September 12, 1924. The amount of the loss was agreed upon, and defendant paid plaintiff $1286.38, which, it is conceded, is the full amount of its liability under the policy in suit, if the two policies taken out by Kephart effected insurance with which the policy in suit must pro rate. The verdict was for the difference between the amount paid plaintiff by defendant and the amount of the policy.
Defendant, relying upon the clause in the policy in suit, which provided that "this company shall not be liable for a greater proportion of any loss or damage than the amount hereby insured shall bear to the whole insurance covering the property, whether valid or not *352
and whether collectible or not," contends that the effect of this clause is to require a prorating between this policy and the policies taken out by Kephart. While the language of the pro rata clause is broad enough to cover any policy issued on the same property no matter by whom procured, we cannot adopt such a construction here. We have found no case in Pennsylvania which rules the point, and no authority in point has been cited in the briefs. But we have found a number of decisions by the courts of last resort of sister states which support the following statement of the law in 4 Joyce on Insurance, 2d Ed., p. 4167: "A provision in a policy that in case of any other insurance upon the property insured, made prior or subsequent to the policy, the assured shall be entitled to recover no greater proportion of the loss than the sum insured bears to the whole amount so insured thereon, applies only to cases where insurance covers the same interests, and can have no application to insurance obtained upon another distinct insurable interest in the property." Some of the cases supporting this doctrine are: Traders Ins. Co. v. Pacaud,
It is contended by the able counsel for appellant that the insurance obtained by this policy cannot be held to be plaintiff's, because a judgment creditor has no insurable interest in the property of his debtor. He cites Grevemeyer v. Southern Ins. Co.,
The assignments of error are overruled, and the judgment is affirmed.