Curry v. Sun Fire office

• Decision Date: 22 May 1893
• Docket Number: 36
• Parties: Curry v. Sun Fire Office, Appellant
• Court: Pennsylvania Supreme Court

26 A. 658

155 Pa. 467

Curry v. Sun Fire Office, Appellant

No. 36

Supreme Court of Pennsylvania

May 22, 1893

Argued April 24, 1893

Appeal, No. 36, July T., 1892, by defendant, from judgment of C.P. Crawford Co., Feb. T., 1888, No. 95, on verdict for plaintiff, Robert Curry.

Assumpsit on policy of fire insurance.

The policy contained a provision that it should become void in the event of any false representation by the insured of the condition, situation, or occupancy of the premises, or any omission to make known any fact material to the risk or of any overvaluation or misrepresentation whatsoever, either in a written instrument or otherwise.

At the trial, it appeared that the company made no demand for a written application when the insurance was applied for. The evidence as to what took place at that time and what representations were made as to value of liens was conflicting.

The company claimed that the plaintiff had concealed the fact that an attempt had been made to burn his house, and his fear that the attempt might be repeated. [The court in rebuttal permitted plaintiff to testify, under objection, that he did not think there had been an attempt to burn the house.]

The court charged in part as follows:

"The first fact relied upon by the defendant is this, that a short time prior to the issuing of this policy there had been an attempt to set fire to the dwelling house covered by the policy, that that fact was known to the insured, that it was a fact material to the risk, and that the insured knowing such fact, and omitting to communicate it to the insuring company when he applied for the policy, was guilty of fraud in effect. . . .

"[If it was not an attempt to burn his house, if from all you have heard stated by Mr. Curry, or heard from the defence as having been stated by him at former times, you reach the conclusion that it was not an attempt to burn his dwelling house, then there was nothing for him to communicate, and the person who was insured is not bound to communicate his fears his apprehensions.] He must communicate facts, and then the insurance company may determine from these facts whether they will undertake the risk or not; and, when the inquiry is brought before the court for determination, the question is not so much what Mr. Curry may have feared or apprehended but whether there was reasonable grounds from which he might fear and apprehend. In other words, whether the facts were such as warrant now the conclusion that he was likely to be burned out.

"The plaintiff on the trial here does not deny the facts as he formerly stated them to Mr. Lundy, the agent, and as he stated them to the witnesses, as I understood his testimony on this trial. It is for you in examining his evidence, and considering it, to determine whether he has on this trial changed his statement as to the facts which occurred there as to the dog, the men, the pursuit of the men, the oil, the bottle, the shavings, and the other circumstances which at that time led him to believe that some person was trying to burn his dwelling. He does, however, state that in reflecting upon the matter, considering the whole case, he has made up his mind that it was not an attempt to burn his dwelling house, but was a trick or prank of some boys whom he had driven out of his peach orchard. . . .

"The third element of defence introduced by the defendant is that there was an omission on the part of the insured to give notice of certain judgments which were liens upon his property at the time the insurance was taken out. And this defence is introduced under that clause of the policy already read to you, which provides that any omission on the part of the insured to state in the written application for his insurance the amount of incumbrances upon the property shall void and defeat the policy.

"It appears from the evidence in this case, gentlemen, that there was no written application for the insurance. [The insurance company might have required the insured to sign a written application for the insurance, and might have required him to make such statements and representations in writing about the condition and value of the property and its situation with reference to liens as it saw fit to exact. It did not however, do so, and the defendant is not now in a condition to object that the plaintiff did not state in his application in writing to the company the amount and character of the liens and incumbrances upon his property.] . . . . The agent testified in your hearing, yesterday, very emphatically, that when Mr. Robinson asked for the policy, in the conversation between him and Mr. Robinson on the subject Mr. Robinson said, when he asked him if there were liens, judgments, mortgages or otherwise on the property, that there were none. Notwithstanding the fact that the defendant did not ask for a written application and for a statement in writing of the liens upon the property, yet, if Mr. Robinson, in making a verbal application for a policy, stated to the representative of the company that there were no liens, judgments or mortgages on the property, when in...