Levan v. Pottstown-Phoenixville Ry. Co.
| Decision Date | 11 February 1924 |
| Docket Number | 125 |
| Citation | 279 Pa. 381,124 A. 89 |
| Parties | Levan v. Pottstown, Phoenixville Ry. Co. et al |
| Court | Pennsylvania Supreme Court |
Argued January 11, 1924
Appeal, No. 125, Jan. T., 1924, by Utilities Mutual Insurance Company, insurance carrier, from judgment of C.P. No. 3 Phila. Co., Dec. T., 1922, No. 5951, affirming decision of Workmen's Compensation Board, in case of Esther M. Levan v. Pottstown, Phoenixville Railway Co. and Utilities Mutual Insurance Co. of New York, insurance carrier. Affirmed.
Appeal from decision of Workmen's Compensation Board, which sustained award of referee in favor of claimant. Before FERGUSON, J.
The opinion of the Supreme Court states the facts.
Decision affirmed. Utilities Mutual Insurance Company, insurance carrier, appealed.
Error assigned was, inter alia, judgment, quoting it.
The judgment is affirmed.
John P Connelly, for appellant. -- The policy was not in effect at the time of the accident: Hamilton v. Ins. Co., 5 Pa. 339; Pennsburg Mfg. Co. v. Ins. Co., 16 Pa.Super. 91; Pottsville Mut. F.I. Co. v. Improvement Co., 100 Pa. 137.
Jesse R. Evans, for appellee. -- The positive acts of appellant show clearly that it recognized the existence of a binding contract of insurance, and such acts estopped it from denying liability after the happening of the accident: Long v. Ins. Co., 137 Pa. 335.
In Pennsylvania the law even permits oral contracts of insurance: Lenox v. Ins. Co., 165 Pa. 575; Ripka v. Ins. Co., 36 Pa.Super. 517; Benner v. Fire Assn. of Phila., 229 Pa. 75.
Before MOSCHZISKER, C.J., FRAZER, WALLING, KEPHART and SADLER, JJ.
On July 16, 1921, Calvin B. Levan was accidentally killed while in the employ of the Pottstown, Phoenixville Railway Company, defendant, and by proceedings under the Workmen's Compensation Law, his widow, the plaintiff, was awarded compensation for herself and children. While the case was before the referee, the Utilities Mutual Insurance Company of New York was brought upon the record as insurance carrier. The referee, compensation board and lower court, held the insurance company liable as such carrier; from which it brought this appeal.
The question is whether at the time of the accident defendant was insured by appellant. Admittedly it had been for the years 1919 and 1920, by liability policies duly issued, but for the year 1921, while a like policy had been executed by appellant and forwarded to its agent in Philadelphia, it had never been delivered to defendant railway company, possibly because of its failure to pay the premium on the 1920 policy. There is no provision in the policy that it shall become effective only on delivery or on payment of premium; in fact, the latter is payable in monthly installments, tentatively fixed on estimates, but subject to final adjustment based on defendant's pay roll for the year. The insurance for 1920 was clearly valid, notwithstanding defendant's failure to pay the premium, as that for 1921 would have been had the policy been delivered. Moreover, the facts and circumstances are sufficient to support the finding that the insurance for 1921 was actually in force; among which facts, etc., are defendant's application for the insurance and the execution and forwarding of the policy by appellant, its repeated requests for payment of premiums thereon and apparently treating the policy as in force in July, 1921, in the case of injury to another employee, its sending a bill to defendant during the same month for the premium for 1920 and the matured portion of that for the year 1921, also its acceptance and endorsement of the check received in full payment of the bill. This check seems to have been sent before but was received by appellant after the accident in question; upon learning of which it erased the endorsement and returned the check to defendant. Again, the law requires the employer to carry liability insurance for the protection of its employees (section 305, Act of June 2, 1915, P.L. 736, 741), and in January, 1921, appellant filed a copy of the policy in question for that year with the Pennsylvania Rating Bureau of the Insurance Department (as required by Act of July 22, 1919, P.L. 1120); thus indicating that the original was in force. This filing prevented the bureau from taking steps to compel defendant to take out insurance and gave the employer and employees assurance of protection. Without stopping to consider whether the filing of such copy would estop appellant from denying the existence of the insurance, it is in any aspect a strong circumstance in favor of appellee. In April, 1921, appellant notified the rating bureau that the policy had been cancelled, as of its date, for nonpayment of premium, but gave no notice to defendant...
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