Kister v. Lebanon Mutual Ins. Co.

• Decision Date: 07 October 1889
• Docket Number: 450
• Citation: 18 A. 447,128 Pa. 553
• Parties: JOHN KISTER v. LEBANON MUTUAL INS. CO
• Court: Pennsylvania Supreme Court

18 A. 447

128 Pa. 553

JOHN KISTER v. LEBANON MUTUAL INS. CO

No. 450

Supreme Court of Pennsylvania

October 7, 1889

Argued May 23, 1889

ERROR TO THE COURT OF COMMON PLEAS OF YORK COUNTY

No. 450 January Term 1889, Sup. Ct.; court below, No. 13 October Term 1888, C.P.

On September 13, 1888, John Kister brought assumpsit against the Lebanon Mutual Insurance Company of Jonestown, Pa., upon a policy of insurance against fire issued to the plaintiff by the defendant company. The defendant pleaded, non-assumpsit.

At the trial on March 11, 1889, the plaintiff offered in evidence the policy upon which the suit was brought, excluding from the offer a copy of the application which was upon the back of the policy and by a clause contained in the policy was made a part of it.

Objected to because the policy cannot be offered in evidence without the application.

By the court: Offer overruled; exception.

The plaintiff then put in evidence the policy and application. By the policy, which was dated November 5, 1885, the defendant company, in consideration of ten dollars in hand paid, and an obligation to pay such sums at such times as the board of directors might require, for the payment of fire losses and necessary expenses of the company, insured John Kister for the term of five years against loss by fire, to the amount of $1,000, upon a certain two story building at Goldsboro, York county, Pa., used for a town hall and for business purposes. The following covenants or conditions were contained in the policy:

"And if the assured shall make any false representations as to the character, situation or occupancy of the property, or the interest of the assured in the same; or conceal any fact material to the risk, either in a written application or otherwise; . . . or if the risk be increased by any means whatever, and the assured shall neglect to notify this company thereof, and have the same indorsed hereon, and make actual cash payment into the office of the company, or to its agent having authority, as aforesaid, to receive the same, of such additional premium as shall be demanded; . . . or if the assured . . . shall sell or transfer the property herein insured, or have the same incumbered, without notice to this company, indorsed hereon; . . . then and in every such case this policy shall be null and void."

"If any broker or other person than the assured, shall have procured this insurance to be taken by the company, such broker or other person shall be considered the agent of the assured and not of this company."

"And it is hereby understood and agreed by and between this company and the assured, that this policy is made and accepted in reference to the foregoing terms and conditions as well as the application and survey, which are made part of this policy, and which are to be used and resorted to in order to explain the rights and obligations of the parties hereto, in all cases not herein otherwise specially provided for in writing."

To the application was appended the signature of John Kister as applicant, witnessed by R. P. Strominger, agent. It bore date November 4, 1885. Portions of it were as follows:

"The said applicant makes the following statements and gives the following answers to interrogatories here put relative to the risk, as a warranty on the part of the assured, for which a policy numbered the same as this application, is issued:

7. Have you ever suffered loss of property by fire? If so, were you insured, and in what company?

7. Yes small loss. Farmers', of York, Dover, Leb. Mutual, of Jonestown.

9. Is it encumbered? To what amount, if so? Is the encumbrance insured?

9. None.

16. Are all the facts material to the risk made known?

16. Yes.

"And the undersigned, applicant for the proposed insurance hereby covenants and agrees to accept of the policy issued upon this application and survey, if in accordance therewith. But if any untrue answers be given to the foregoing interrogatories, whereby the said company has been deceived as to the character of the risk, . . . then said policy of insurance to be void and of no effect. . . . And the insured hereby covenants and engages that the representations given in this application for this insurance are a warranty on the part of the assured, and contain a just, full and true exposition of all the facts and circumstances in regard to condition, situation and value of the property insured."

To the application was appended also a statement as to the exposures and occupancy of the building and a report on the desirability of the risk, signed by R. P. Strominger, agent.

The plaintiff then showed that the application had been forwarded by R. P. Strominger to the special agent of the defendant company, and the policy applied for was thereupon sent to Strominger, who delivered it to the plaintiff and collected from him the premium, which Strominger, at the end of the month when he made his report as agent, sent to the special agent, after deducting his commission on the insurance. The plaintiff then showed that on April 26, 1888, the building insured was destroyed by fire, and that on May 9, 1888, proofs of loss were sent to the defendant company, and rested.

The defendant put in evidence a number of judgments which were standing upon the record against John Kister at the date of his application, aggregating in amount over $4,400, some of which were revived between the dates of the application and the fire; also three judgments aggregating $1,500, which were entered against him during the year 1886. C. F. Reehling, sworn for the defendant, testified that the plaintiff had suffered three losses by fire, prior to November 4, 1885, one of them being in a confectionery store carried on by him, another in a house and stable at a place called Smokeville, the witness having no personal knowledge of the third.

The plaintiff having taken the stand in rebuttal, his counsel offered to prove by him, that at the time R. P. Strominger obtained from him the application already in evidence, the answer that he gave to Strominger to question No. 9 was that he had liens on his property exceeding $4,000, but that he had paid some of them, but he did not know how much, or words to that effect; that he did not state, as in the application, that there were none; that the application was not read to him before he signed it; that he signed it believing that the agent had properly written down his answer: For the purpose of showing that the answer did state the amount correctly as a warranty, the agent having written down an answer entirely different from that given by the assured.

Defendant's It is objected that the answer given by the plaintiff and subscribed to by him is by the terms of the application and the policy made a warranty, and cannot be contradicted or varied in this way; that the proof shows that the agent who took the application was not the agent of the company, and if he improperly wrote down the answer of the plaintiff, it was the plaintiff's loss, and not the company's: that it is not proper evidence to re-form the written contract, or vary, or change its terms; it is irrelevant, immaterial and improper.

Plaintiff's The plaintiff will offer to follow the above by proof that the incumbrances on the insured property were not increased but diminished, after the issuing of the policy, even to a sum below the amount stated by the applicant at the time of making the application.

Defendant's In view of the fact that several judgments were entered against the plaintiff subsequent to the issuing of this policy, it is immaterial as to whether the amount was greater or less, and it is irrelevant and immaterial as to what it is proposed to be followed by.

By the court: Offer refused; exception.

Plaintiff's The plaintiff now offers to prove by himself the witness on the stand, and also by R. P. Strominger, agent of the company, that at the time of the taking of the application, he, the plaintiff, stated to the agent Strominger, not that there were no incumbrances on the property, but that there were incumbrances exceeding $4,000, and that some of them had been paid, he did not know exactly how much, or words to that effect; that Strominger, the agent of the company, in filling the blank space after the question No. 9, wrote down the word "none" incorrectly, mistakenly, or otherwise; to be followed by evidence of the demand made by the company on the plaintiff in this case for the losses under this policy, with the notice of the company thereon, sent to him, and the receipts; that assessments were paid to the company, one on October 30, 1886, and the other September 15, 1887, both of the receipts being signed by the same R. P. Strominger, as agent of the company; and that the said payments were made in pursuance of the directions or instructions of the company that the assessments should be paid to him, as contained in the assessments: all of which is offered as evidence in rebuttal to sustain the position of the plaintiff, and going to show that the answer to the question No. 9, in the application, was not correctly written down by the agent Strominger, and also for the further purpose of showing the agency of Strominger, and that the company defendant continued to levy assessments and collect them from the plaintiff.

The defendant waived formal proof of the authenticity of the notices and receipts mentioned in this offer, but objected to the admission of the offer.

By the court: Offer refused; exception.

Plaintiff's The plaintiff further proposes to prove that at the time that this application was made, November 5, 1885, the amount due on the incumbrances against the plaintiff amounted to less than $3,000 and that they never exceeded that amount...