20 Pa. Super. 384 | Pa. Super. Ct. | 1902
Opinion by
The plaintiff is a joint stock or partnership association, organized under the Act of June 2, 1874, P. L. 271. It seeks to recover upon a policy of insurance issued by the defendant to the Ulysses Elgin Butter Company. The suit was originally brought in this name but, upon the trial, leave was granted, upon motion, to amend by adding the word “ Limited.” The record of the formation of the partnership association was given in evidence as was also the deed for the land upon which the building was erected, for the destruction of which by fire, recovery was sought under the policy issued by the defendant. There was, therefore, no question as to the identity of the plaintiff or of the property destroyed, and, if there had been, that question was distinctly submitted to the jury and the verdict determines it.
1. The question as to the right of the plaintiff to recover by reason of the variance between the name of the plaintiff, as fixed by the amendment, and the name in the policy of insurance upon which suit was brought was raised in various ways and is raised here under the first, second and ninth assignments of error. We are of opinion that there was no fatal variance between the name of the plaintiff and the name of the company,
2. As we view this case, the questions of the plaintiff’s being relieved from the duty of furnishing a proof of loss or the waiver on the part of the defendant of the necessity for the furnishing of the same do not arise, for the reason that the
3. In the statement of the questions involved, the appellant raises this inquiry: “ Factory insured ceased operation for more than ten days, contrary to terms of policy: question, was policy avoided ? ” This question does not seem to have been raised in the court below and is certainly not raised by any of the defendant’s points for charge. It was a question, under all the evidence in the case, for the jury. If considered by them, it was found in favor of the plaintiff and, if not specially considered, it is due to the fact that the defendant failed to ask the court to direct their attention specially to it. It is possible that the building was not used for the actual manufacture of butter at the time of the fire. Was it used, however, as manufacturing establishments of that kind are used in the ordinary course of business during the winter time ? This we take it would be the real question to be considered by the jury. It was not raised in the court below in such a way as to require us to pass upon it as a question of law here.
4. A single other question remains. Under the provisions of the policy, it is made the duty of the insured “ If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company .... stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof and the amount of loss
Inasmuch as the time and character of that notice were not in evidence for the reason that the offer to prove it was made after the testimony had been closed and was ruled out by the court, we do not now determine this question. Ordinarily the offer of testimony out of time is an appeal to the discretion of the court and it is only in extreme cases that we would interfere in any way with the exercise of such discretion. We are satisfied, however, that, if the court had regarded this question as of the vital importance which it assumes in our view of the
On the whole case, as presented to us, and in view of the incomplete and unsatisfactory condition of the record by reason of the failure of the court below to receive the evidence in regard to notice, we think the case should be retried.
Judgment reversed and a new venire awarded.