Brown v. Pennsylvania Casualty Company

• Decision Date: 04 January 1904
• Docket Number: 146
• Citation: 56 A. 1125,207 Pa. 609
• Parties: Brown, Appellant, v. Pennsylvania Casualty Company
• Court: Pennsylvania Supreme Court

56 A. 1125

207 Pa. 609

Brown, Appellant, v. Pennsylvania Casualty Company

No. 146

Supreme Court of Pennsylvania

January 4, 1904

Argued November 5, 1903

Appeal, No. 146, Oct. T., 1903, by Anna Z. Brown administratrix, from judgment of C.P. No. 1, Allegheny County, March T., 1902, No. 592, on verdict for defendant in case of Anna Z. Brown, Administratrix of the Estate of John P. Brown, Deceased, v. The Pennsylvania Casualty Company of Scranton, Pa. Affirmed.

Assumpsit upon a policy of accident insurance. Before BROWN, J.

The opinion of the Supreme Court states the case.

At the trial the following offer was made:

I propose to prove by the witness that he has told two witnesses in court on different occasions that it is the practice of the agency here to give credit for premiums in certain cases. I propose further to show that the general agent, the witness, offered to give credit and to deliver the policies to the witnesses named. This for the purpose of showing that it is a custom of the agency here to deliver policies and give credit for premiums. Objected to as incompetent and irrelevant. Objection sustained and bill sealed for plaintiff. [1]

The court gave binding instructions for defendant.

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1) ruling on evidence; (2) in giving binding instructions for defendant.

Judgment affirmed.

George M. Harton, for appellant.

W. A. Blakeley, with him Wm. A. Way, Albert J. Walker and Alvin A. Morris, for appellee.

Before MITCHELL, C.J., DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

OPINION

PER CURIAM:

The express condition of the policy is that no renewal of it shall "take effect unless the premium is actually paid previous to any accident under which claim is made." It is admitted that the renewal premium was not paid until after the accident, but appellant claims to go to the jury on the question of waiver. The cases on this subject have been exceedingly liberal in favor of the insured, but none of them go as far as we are asked to do here. The underlying element which opens the question of implied waiver to the jury is that the insurer has done some act or pursued some course of conduct which tended to mislead the insured, or to lull him into delay in performing his stipulations in the contract. There is nothing in this case that can by any fair inference amount to proof of a waiver. The question asked of...