Hebb v. Kittanning Ins. Co

• Decision Date: 03 November 1890
• Docket Number: 177
• Citation: 138 Pa. 174,20 A. 837
• Parties: L.S. HEBB ET AL. v. KITTANNING INS. CO
• Court: Pennsylvania Supreme Court

20 A. 837

138 Pa. 174

L.S. HEBB ET AL. v. KITTANNING INS. CO

No. 177

Supreme Court of Pennsylvania

November 3, 1890

Argued October 15, 1890

APPEAL BY DEFENDANT FROM THE COURT OF COMMON PLEAS OF ARMSTRONG COUNTY.

No. 177 October Term 1890, Sup. Ct.; court below, No. 144 June Term 1888, C.P.

On April 14, 1888, Lavina S. Hebb and Thomas F. Hebb brought assumpsit against the Kittanning Insurance Company, upon a policy issued by the defendant, dated June 3, 1887, insuring the plaintiffs against damage by fire to the amount of $833.33, as follows: $666 on a frame hotel building at St George, Tucker county, West Virginia, and $167.33 on furniture, etc., contained in said building.

The plaintiffs' statement of claim recited the contract of insurance contained in the policy, and averred that on December 16, 1887, during the term for which the policy was issued, the property insured thereby was totally destroyed by fire, the hotel building being then worth at least $3,000 and the personal property at least $573.35; that, on the same day, the plaintiffs gave the defendant notice of said loss and afterwards, to wit, on December 21, 1887, delivered to the defendant as particular an account thereof as the nature of the case permitted, and produced to the defendant full and adequate proofs; that the plaintiffs had in all respects complied with the conditions of said policy, but the defendant had not paid or made good said loss, and there was now due from the defendant to the plaintiffs, $833.33, with interest from March 22, 1888. A copy of the policy sued on was appended to the statement of claim as a part thereof, but no copy of the application for the insurance was attached to the copy.

The defendant, having been served with a copy of the statement of claim, filed an affidavit of defence, which, after averring that the paper called a declaration and statement, filed by the plaintiff, was wholly insufficient and defective under the law and practice of this commonwealth, and reserving all objections thereto, set out a defence to the plaintiffs' claim as follows:

"That the said plaintiffs, by the application and otherwise, did procure the policy of insurance sued upon, by representing and alleging that the building embraced by the said policy of insurance and insured by said company defendant, was wholly owned, possessed and controlled by said plaintiffs, as a three story frame shingle-roof hotel, with two story addition, situated as the said policy described, in fee whereas in truth and in fact, the said plaintiffs were not the owners, possessors or controllers of the whole of said building, nor was its use and occupation at the time the property was insured, before or since, occupied wholly as a hotel; nor had the said plaintiffs fee title to whole of said building and ground upon which it was situated, but that of one room in said building the fee title was in and yet continues in St. George Lodge No. 39, I.O.O.F., used and controlled by said lodge and without the control of said plaintiffs; and also there was one room and ware-room in said building occupied by W.A. Lipscomb & Co., as a store, which was a fact at the taking out of the policy of insurance, and did so continue to the date of the said fire; which facts the said company ascertained only from the plaintiffs' proofs of loss since said fire, and was never informed or made aware of the said facts in any other manner or at any other time but the same facts were fraudulently concealed from said company by the said plaintiffs.

"And the said defendant company further says that by the terms of the policy sued upon, it is thus provided: 'No. 1. Conditions and limitations of this insurance; What will render this policy void unless stated --: This company will not be liable under and by virtue of this policy if there be any omission, misrepresentation, non-disclosure or concealment of the title, encumbrance, condition, location or occupancy of the property, etc., etc.; in each and every case, this insurance is void and this policy ceases and determines.' And the said company defendant further says that by reason of said condition, and the said concealments, etc., the said insurance was void and the policy was of non effect, and before the said fire by the reason of the premises the said policy had wholly ceased and been determined. All of which facts this company defendant can prove on the trial of the case, by legal and competent evidence."

The History of the Case of the defendant company (appellant) stated that the application, referred to in the affidavit of defence, was in writing.

A rule for judgment for want of a sufficient affidavit of defence having been argued, the court, NEALE, P.J., on August 5, 1889, filed the following opinion:

Whether or not the defendants have a meritorious defence to this action, we cannot say. The affidavit of defence would indicate that the defence would be meritorious; but, by reference to the authorities cited by the plaintiff, it would seem that the affidavit of defence is insufficient.

The act of May 11, 1881, P.L. 20, makes it obligatory upon this defendant company to attach to the policy a copy of the application, otherwise it is not to be received in evidence or made a part of the contract. And, whilst the affidavit of defence refers to this, as a part of the contract, nowhere is this fact set out. Nor is any other paper presented to the court, either by copy or otherwise, by the defendants. We are therefore left wholly to inference, or compelled to accept the defendant's conclusions, which cannot be done. The case of Erie City v. Butler, 120 Pa. 374, is a strong authority upon this point, and under that authority we feel constrained to sustain the motion. The rule for judgment is therefore made absolute.

On August 6, 1889, upon application of the defendant for a re-argument, the court granted a rule to show cause why the judgment should not be opened. After argument thereof, the court, RAYBURN, P.J., on August 4, 1890, discharged the rule to open, at the cost of the defendant; exception.

Thereupon the defendant took this appeal, specifying that the court erred:

1. In making absolute the rule for judgment.

2. In discharging the rule to open the judgment.

Judgment affirmed.

Mr. M. F. Leason (with him Mr. H. L. Golden and Mr. J. H. McCain), for the appellant:

1. The procedure act of May 25, 1887, P.L. 271, did not change the law and practice which prevailed prior to its passage, respecting affidavits of defence. In § 5 it provides that judgments for want of a sufficient affidavit shall be taken "in accordance with the present practice." An insurance policy does not come within the affidavit of defence law, as it is not an instrument for the payment of money, but a contract of indemnity; and the insurer's liability, in the event of a fire, is conditioned upon the performance of certain duties by the assured, and dependent, as to its extent, upon the existence and amount of concurrent insurance, as well as upon the value of the property destroyed: Morton v. Insurance Co., 12 Phila. 246; Karthans v. Insurance Co., 1 Pears. 104; Miller v. Insurance Co., 1 Pears. 106; Borlin v. Commonwealth, 99 Pa. 46. The only exception to this is when the insurance company has made an adjustment of the loss: Endlich on Aff. of Def., §§ 182, 183. In Lycoming Ins. Co. v. Dickinson, 4 W.N. 271, this court sustained a judgment for want of an affidavit of defence in a suit on an insurance policy, but the decision was rested upon the peculiar phraseology of a Rule of Court in Blair county, and therefore the case is an authority in our favor.

2. The affidavit filed presented a sufficient defence. In holding the affidavit insufficient because it was obligatory on the company, under the act of May 11, 1881, P.L. 20, to attach the application to...