POPE
J.
The
trial of this action was had before Judge Buchanan at the
October term, 1899, of the court of common pleas for
Lancaster county. After plaintiff closed his testimony, upon
the motion of defendant the Manchester Fire Assurance Company
Judge Buchanan ordered the nonsuit of plaintiff. After entry
of judgment thereon, plaintiff appealed.
It
seems to us that the error of the circuit judge, if error
there be, lies in a very narrow compass,--so narrow that we
may lay our finger on it, if it exists. The grounds of the
motion for nonsuit were: "That the proof does not
correspond with the allegation of the complaint; the
testimony of the plaintiff showing that he did not have the
estate in the property in question which the complaint
alleged; objection having been made to all evidence showing
any estate or insurable interest in the plaintiff other than
alleged in the complaint. The insurable interest represented
by the plaintiff and his wife in the property mentioned in
the policy was not insured. That where the plaintiff alleges
himself to be the owner of the property, and bases his
complaint thereon, alleging that such insurable
interest was insured under the policy, therefore he cannot
recover thereon by proving another insurable interest, not
contemplated by the parties or mentioned in the policy. That
the plaintiff alleges one contract, and offers proof as to
another. Also, that the very policy annexed as an exhibit to
the complaint contained a promissory warranty on the part of
the plaintiff that he was the sole and unconditional owner of
the property, and that the building was on ground owned by
the insured in fee simple, and in his complaint the
fulfillment of this condition is alleged, whereas there is no
proof either of the contract alleged, or the fulfillment of
the terms and conditions thereof." The foregoing grounds
of motion for a nonsuit were substantially taken down by a
stenographer. The plaintiff (appellant), in argument
contended that the execution of the alleged deed of
conveyance had not been proved, and the deed had not been
offered in evidence, and that the title of the property was
still in the plaintiff; and, when the judge indicated an
adverse view, plaintiff's counsel remarked, "If your
honor has any doubt about the delivery of the deed, we would
like to put the subscribing witnesses on the stand, as to the
execution and delivery of the alleged deed." The judge
refused to do this; remarking that the plaintiff had rested
and this was a motion for a nonsuit. The circuit judge then
made his ruling on the motion, as follows, viz.: "My
idea about the case is this: Here is a man comes to an
insurance company, by his agent, and says: 'Look here.
You have been carrying my insurance about 3 or 4 years. I
want to renew my insurance.' Practically says that,
because, when he says that by an agent, he says that himself.
No questions were asked, at all. The company says: 'All
right. Here it is.' Well, it turns out now that at a time
heretofore that property upon which this policy was written
had been conveyed to somebody else. The agent of the company
says: 'Well, I insured you' such a time and such as
time. 'I will insure you in pursuance of the
contract.' Well, now, not one syllable is given him of
any change at all in the condition. Here is a
man who has conveyed away the property, knows the insurance
has been carried as his property, and does not give the
insurance company a word of notice. Is that putting these men
on notice? The company did not know it. Was it his
negligence, his lack of care? I don't think, from
whatever standpoint you view it, there is any evidence of
waiver. There is certainly not any evidence here to show any
fee-simple title, nor can the complaint be sustained here
upon the ground of a lesser estate. Now, if plaintiff's
statement be true, he not only has no lesser estate, but no
estate at all, except an estate hung up in the skies,
depending
upon the affection the children have for their--for the
plaintiff? I don't think so. He does not sue as
agent,--as trustee. He sues in his own name. He does not say
he was acting for A., B., and C.,--acting as agent,--but the
allegation is that he is owner in fee simple. Well, now, it
might be said in reply that the matter of forfeiture is a
matter of specific defense; but it is also true, when a
plaintiff undertakes to anticipate the defense, and to prove
that, and to prove himself in court and out of court at the
same time, he goes out of court, because he could have gone
and proved his loss alone. Now, by the same thing he attempts
to prove his status in court he proves himself out of court.
I think the nonsuit ought to go. That is my judgment."
The judge then signed the following order of nonsuit:
"The plaintiff having concluded his evidence, and a
motion for a nonsuit having been made by the defendant, after
hearing argument, ordered that said motion for nonsuit be,
and the same is hereby, granted, upon the grounds made and
reasons expressed, taken down by the stenographer. October
24, 1899. O. W. Buchanan, Judge."
Notice
of appeal from the judgment and order of nonsuit, and from
the ruling of the circuit judge at the trial, within 10 days
from the rising of the court, to the supreme court, for
reversal and correction of the same, was given; and the
following are...