Diffenbaugh v. Union Fire Ins. Co.

• Decision Date: 13 July 1892
• Docket Number: 140
• Citation: 24 A. 745,150 Pa. 270
• Parties: Diffenbaugh, Appellant, v. Union Fire Ins. Co
• Court: Pennsylvania Supreme Court

24 A. 745

150 Pa. 270

Diffenbaugh, Appellant, v. Union Fire Ins. Co

No. 140

Supreme Court of Pennsylvania

July 13, 1892

Argued May 18, 1892

Appeal, No. 140, July T., 1891, by plaintiff, from judgment of C.P. Lancaster Co., March T., 1889, No. 16, nonsuit, in assumpsit on fire insurance policy.

The title of plaintiff in the suit was amended from "Emma M Diffenbaugh" to "Henry Diffenbaugh, agent for and for use of Emma M. Diffenbaugh, wife of Henry Diffenbaugh."

The evidence was to the following effect, on the trial before LIVINGSTON, P.J.: The title to the realty on which the buildings insured were located was in Mrs. Diffenbaugh. On March 31, 1875, she had a certificate of the court entitling her to her separate earnings. On April 3, 1875, she constituted her husband her agent to carry on the business of butchering on the premises. All the contents, named in the policy, belonged to her.

Plaintiff then offered in evidence the policy in suit, covering property of Henry Diffenbaugh, but the court rejected it. [1]

The policy contained the following conditions:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof; whether before or after a loss. This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if . . the interest of the insured be other than unconditional and sole ownership."

Plaintiff then offered to prove by her husband, as follows:

"1. That he was acting as the agent for his wife, when he made the application for the insurance with Myers & Eckenrode agents for the company defendant. [2]

"2. That just before the insurance was effected, he, through the same agents, effected insurance of other real estate of his wife, the policies for which were written in her name, that neither witness nor his wife knew that these agents had written the policy in suit in his name, instead of in her name, until after the fire and loss." [3]

Objected to and disallowed.

The court refused to allow plaintiff to answer the following questions: "Did you authorize your husband, at the time this policy was taken out, to insure in this company and to take out this policy?" [4]

Also the following question: "Did your husband take out this policy, and did you know at the time your husband did take out this policy?" [5]

The court rejected an offer of alleged proof of loss. [6] Also offer of evidence to prove loss. [7] And entered a nonsuit, and afterwards refused to take it off. [8]

Plaintiff thereupon took this appeal.

Errors assigned were (1-7) rulings on evidence, quoting the offers as above; and (8) refusal to strike off nonsuit.

Judgment affirmed.

H. C. Brubaker, G. C. Kennedy with him, for appellant. -- There was no written application. The husband orally directed the policy to be made in the wife's name. There was no fraudulent misrepresentations as to ownership. There could have been no motive for such representations. Nor could there have been any objection on the part of the company to insure in the wife's name. Such was the intention of the parties. The policy was written in the husband's name by mistake. Equity will reform such a contract: Snyder v. May, 19 Pa. 235; Moliere v. Fire Ins. Co., 5 Rawle, 346; Ins. Co. v. Scott, 27 Leg. Int. 76. It is immaterial whose act it was: Moliere v. Ins. Co., above.

The husband had acted as the wife's agent, and the husband's purchase of the policy can be supported on the ground of agency: Harris v. York Mut. Ins. Co., 50 Pa. 349; Story, Agency, § 3, 5th ed.

The policy was written with the full knowledge of the company with the intention to insure the wife's property.

A policy is to be read in the light of the circumstances that surround it: Phila. Tool Co. v. Assurance Co., 132 Pa. 241. And most strongly against the company: Tool Co., above; Grandin v. Ins. Co., 107 Pa. 26; Ins. Co. v. Dunham, 117 Pa. 460; Ins. Co. v. Hoffman, 125 Pa. 626.

Mariott Brosius, for appellee. -- There is no evidence of mistake or that the husband orally directed the policy to be made in the wife's name. To authorize reformation, the mistake must be mutual.

Harris v. York Mut. Ins. Co., 50 Pa. 349, was a mutual company, and the policy contained no provision requiring sole ownership or the nature of the title to be stated, as in our case.

The wife made no contract with defendant, and the husband has no property to insure. The only escape is to strike out of the contract the conditions which stand in the way of recovery.

If the interest is required to be truly stated, a failure to state it renders the policy void: Richards, Insurance, 143.

Conditions in a policy are a part of the contract, and are presumed to be seen and understood by the assured: Kensington National Bank v. Yerkes, 86 Pa. 227.

The "sole and unconditional ownership" clause in a policy of insurance is a reasonable and valid provision: Richards, Insurance, 153; Weed v. London & Lancashire Ins. Co., 116 N.Y. 106; Phila. Tool Co. v. Assurance Co., 132 Pa. 236; Grandin v. Ins. Co., 107 Pa. 26. These cases hold that while, in some cases, under the "sole ownership clause," the assured could recover for the interest he had, though it was less than a fee simple, yet in no case could there be a recovery for any interest not covered by the policy.

It may be important to the risk for the company to know whether the insured is sole or only part owner: Grandin v. Ins. Co., 107 Pa. 26.

In case of a provision in a policy against a sale or change of interest, it was held that a sale by the husband to his wife through a third person avoided the policy: Oakes v. Manufacturers Ins. Co., 131 Mass. 164; Walton v. Agricultural Ins. Co., 116 N.Y. 326.

A husband cannot insure his wife's property in his own name, when the policy requires a...