Long v. North British Etc. Ins. Co

• Decision Date: 05 January 1891
• Docket Number: 110
• Parties: A. A. LONG v. NORTH BRITISH ETC. INS. CO
• Court: Pennsylvania Supreme Court

20 A. 1014

137 Pa. 335

A. A. LONG v. NORTH BRITISH ETC. INS. CO

No. 110

Supreme Court of Pennsylvania

January 5, 1891

Argued April 21, 1890

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

No. 110 July Term 1889, Sup. Ct.; court below, No. 407 September Term 1888, C.P.

On July 30, 1888, A. A. Long brought assumpsit against the North British and Mercantile Insurance Company of London and Edinburgh, upon a policy of insurance against fire, dated November 1, 1887. The defendant's plea was non-assumpsit.

At the trial on May 22, 1889, the following facts were shown: A. A Long, the plaintiff, was the proprietor of a store at Olanta Clearfield county, in 1887, and held a policy of insurance against fire upon his stock of goods for $2,000, issued by the defendant company through its agency at Curwensville, and which expired on November 1, 1887. The testimony of the plaintiff tended to show that a few days before the expiration of that policy, J.H. Mead & Co., the defendant's agents at Curwensville, wrote to the plaintiff, calling his attention to the policy, and saying that unless they should hear from him to the contrary, they would renew it; that on November 8, 1887, the plaintiff went to see J.H. Mead & Co., and was informed that they had written up a new policy for him, dated November 1, 1887 instead of simply renewing the old one, on account of the fact that the company had raised its rates, and they produced the new policy and showed it to the plaintiff; that the plaintiff, referring to the increase in the rate, remarked, in a laughing way, "If that is the way you are going to stick it on, I will have to do as Mr. Levi Bloom does, carry my own insurance for awhile;" that Mr. Mead, one of the agents, then went on to explain the action of the company on the subject of rates, when the plaintiff replied that he knew all about that, having been informed of it previously by a Mr. Helmbold; that, after an interruption in their conversation, Mead asked the plaintiff if he wished to take the policy along with him that day, to which the plaintiff replied that he did not think he would, as he was not prepared to lift it, and did not like to lift it without paying for it; that the plaintiff then, after stating that he was in a hurry and must leave, said to Mead, "I suppose I can have thirty days to remit for the policy," and Mead answered, "You can have until the tenth of next month, as we seldom remit before that time;" that the plaintiff then remarked, "I can pay for it most any time for that matter," and left the office.

The custom of Mead & Co. was to carry policies for thirty days or more, if requested by the insured, he becoming their debtor, and they becoming debtor to the company, for the amount of the premium. The plaintiff testified that he had been insured with this agency for three or four years before November, 1887, and that the agents always gave him all the time he wanted for the payment of premiums, though he never took more than thirty days to pay for any policy; and that the policies were generally left with the agents until paid for.

The testimony for the defendant as to what took place on November 8th, tended to prove that the plaintiff objected to the increased rate at which the policy was written and did not agree to accept it; that when Mead offered to give him time for the payment of the premium, the plaintiff said that time was not so much a matter of importance to him as the rate; that he left the office, saying that he would think over the matter, and if he concluded to take the insurance he would let the agents know; and that he never notified them of his intention to take it until after the destruction of the property described in it.

The policy of November 1, 1887, contained the following provisions:

"This company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid."

"The use of general terms, or anything less than a distinct specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein."

"It is further understood and made part of this contract, that the agent of the company has no authority to waive, modify or strike from this policy, any of its printed conditions, . . . nor, in case this policy shall become void by reason of the violation of any of the conditions thereof, has the agent power to revive the same, and that a new policy, intended to replace any policy so made void, shall be of no effect until its actual issue and delivery thereof to the assured, any contract by parol, or understanding with the agent, to the contrary notwithstanding."

The policy had been approved by the company and it was entered on the books of Mead & Co., the premium $40, being charged against the plaintiff in their favor, and also charged against the agents in favor of the company. These entries were dated November 1, 1887, but the date at which they were actually made, was not disclosed by the testimony. The defendant's agents testified, on its behalf, that all policies written by them would appear upon their books in this way, and that if a policy should be canceled, or not accepted by the insured, the accounts upon the books would be balanced by the entry of credits for the amount of the premium.

On the evening of Saturday, November 26, 1887, the plaintiff's store and its contents were destroyed by fire. On the succeeding morning, the plaintiff went to see C. A. Rorabaugh, a member of the firm of J.H. Mead & Co., and informed him of the fire. The plaintiff testified that Rorabaugh said on that occasion that he was sorry that the plaintiff had not sent in a check for the premium before the fire; that he believed the intention of the plaintiff was to lift the policy, but that he was afraid, if the company should find out that the policy had not been paid for before the fire, they would not acknowledge liability. The plaintiff testified, also, that Rorabaugh instructed him to send in a check for the premium, dated before the fire, whereupon the plaintiff went to Olanta, wrote a check to Rorabaugh's order for $40, dating it November 26th, and gave it the same afternoon, Sunday, November 27th, to J. R. Bloom, his son-in-law and clerk, to take it to Rorabaugh.

Rorabaugh, testifying for the defendant, contradicted the testimony of the plaintiff as to the nature of the conversation between them on November 27th. He testified, further, that he received the check at his house in Curwensville, on the morning of November 28th, from J. R. Bloom, and that, when received, it was enclosed in a stamped envelope, with the stamp canceled and bearing the post-mark of the Olanta post-office, dated November 26th, addressed to himself, and containing, besides the check, a letter from the plaintiff dated November 26, 1887, transmitting the check "for $40, for insurance policy for $2,000." The plaintiff, on being shown this letter, admitted that he wrote it, but denied that he wrote the address on the envelope. Witnesses for the defendant testified that in their opinion the latter was written by the plaintiff.

W. J. Owens, a witness called by the defendant, having testified that he was the post-master at Olanta from December, 1886, to May, 1889, the defendant made the following offer:

Defendant proposes to ask W. J. Owens, the witness on the stand, who was post-master at Olanta, Clearfield county, Pa., during the month of November, 1887, if A. A. Long or J. Roll Bloom, his son-in-law and clerk, procured any U.S. Government stamped envelopes or envelope at said post-office on Sunday, November 27, 1887, and did also procure the Olanta post-office stamp, bearing date November 26, 1887, to be placed on any envelope or envelopes, and if so, under what circumstances and what became of the same, and if the witness can identify the envelope in evidence which C. A. Rorabaugh testified he received from J. Roll Bloom, addressed to said Rorabaugh and written to Rorabaugh by A. A. Long and containing the check for $40, to the order of C. A. Rorabaugh, which check is in evidence; and further to ask the witness what time the mails left Olanta post-office. This, for the purpose of proving that the post-office stamp was fraudulently procured to be put on the envelope in question; that the date said envelope bore was fraudulently made to appear as having been mailed at Olanta, November 26, 1887; that it was not mailed at said post-office and did not pass through the mail, but was carried to Rorabaugh by J. Roll Bloom at the instance of A. A. Long, the plaintiff; and for the further purpose of showing that said letter and envelope, with false dates thereon, were thus procured, written and sent, for the purpose of making it appear the premium on the policy of insurance in question had been paid before the fire occurred.

Objected to.

By the court: Objection overruled, evidence admitted so far as to permit witness to testify to the actual facts done, but not to any declarations of J. Roll Bloom, made in the absence of Mr. Long, the plaintiff; exception.

The witness then testified that on Sunday, November 27, 1887, J. R. Bloom procured from the witness three stamped envelopes, and that at Bloom's request the witness post-marked all three of them, the date of the post-office stamp not having been changed from the date of the day before, and that Bloom took away with him the envelopes so stamped. Being shown the envelope identified by Rorabaugh as the one which contained the check handed to Rorabaugh by Bloom, Owens testified that, in his opinion, "it must be one of the three."

Rorabaugh when he received the check on November 28th, took it with him to the...