McKelvy v. German-American Ins. Co.

• Decision Date: 30 April 1894
• Docket Number: 305
• Citation: 161 Pa. 279,28 A. 1115
• Parties: McKelvy v. German American Insurance Co., Appellant
• Court: Pennsylvania Supreme Court

28 A. 1115

161 Pa. 279

McKelvy v. German American Insurance Co., Appellant

No. 305

Supreme Court of Pennsylvania

April 30, 1894

Argued November 10, 1893

Appeal, No. 305, Oct. T., 1893, by defendant, from judgment of C.P. No. 1, Allegheny Co., June T., 1891, No. 736, on verdict for plaintiff, John R. McKelvy. Reversed.

Assumpsit on policy of fire insurance. Before COLLIER, J.

The facts appear by the opinion of the Supreme Court.

The court charged in part as follows:

"That policy was not taken out by Mr. McKelvy, that is clear. The evidence is his wife took it out, but she took it out in his name. The question is, did Mr. McKelvy know that? He says he did not, and his wife says he did not. But you must remember the relation of wife and husband is a very close one. Did he know that before the fire? He says he did not, and she says he did not. After the fire what was his duty? As soon as he found it out his duty was immediately to disavow it, which he says he did. He says he told the agent about the policy, and told him he did not recognize it at all. The learned counsel contends that ought to have been told to the London Assurance Company. I do not think that was a requisite. I say to you that if you find that he really did not know it, although he was hardly more than a day away from his store, and notwithstanding the close relations existing between wife and husband and the necessary knowledge on his part of everything about the business, notwithstanding all that, if he did not know his wife had taken out this policy and as soon as he found it out he told the agent of the defendant company 'I do not recognize that at all, I know nothing about it I stand on my policy with you,' he could recover, provided the other facts are made out." [1]

Plaintiff's point was among others as follows:

"4. The object of the contract of insurance in this case was indemnity; with that object in view the terms of the policy should be construed liberally, and when any doubt existed as to their meaning, it should be resolved in favor of the insured, rather than in the interest of the insurer; words of the policy susceptible of two interpretations should be construed to sustain the claim of the insured." Affirmed. [2]

Defendant's points were as follows:

"1. If the jury believe that Mrs. McKelvy, the wife of the plaintiff, took out a policy of insurance in the London Assurance Corporation upon the goods of the plaintiff, covered by the policy in suit, and that said insurance was in force during the term covered by the policy in suit, without the knowledge or consent of the defendant company, and that subsequently, after the fire, the plaintiff made claim upon the policy of the London Assurance Corporation, then the plaintiff is not entitled to recover in this action. Answer: If the jury find the facts as stated here, the plaintiff cannot recover for anything covered by the policy of the London Assurance Corporation." [3]

"2. Under all the evidence the plaintiff is not entitled to recover and the verdict should be for the defendant. Answer: Refused." [4]

Verdict and judgment for plaintiff. Defendant appealed.

Errors assigned were (1-4) instructions as above, quoting them.

Judgment reversed and venire facias de novo awarded.

Chas. P. Orr, Thomas C. Lazear with him, for appellant, cited: R.R. v. Alvord, 128 Pa. 42; Greber v. Kleckner, 2 Pa. 289; Musselman v. R.R., 2 W.N. 105; Bredin v. DuBarry, 14 S. & R. 29; Lindsley v. Malone, 23 Pa. 24; Kelsey v. Bank, 69 Pa. 426; Bergerhs Ap., 96 Pa. 443; Schrack v. McKnight, 84 Pa. 29; Hill v. Sewald, 53 Pa. 271; Mundorf v. Wickersham, 63 Pa. 87; Clem v. Ins. Co., 29 Mo. 666; McFarland v. Ins. Co., 46 Min. 519; Gottsman v. Ins. Co., 56 Pa. 210; Kimball v. Howard, 8 Gray, 38; Fire Association v. Williamson, 26 Pa. 196.

R. B. Petty, Kennedy T. Friend with him, for appellee, cited: Kitchen v. Ins. Co., 57 Mich. 135; Cannon v. Ins. Co., 53 Wis. 585; Titus v. Ins. Co., 81 N.Y. 410; Taylor's Landlord and Tenant, 5th ed. 287; Pipe Lines v. Ins. Co., 145 Pa. 346; Welsh v. Assurance Corporation, 151 Pa. 607; Wood on Insurance, §§ 376, 377; Story on Agency, §§ 89, 251; Kent v. Mining Co., 78 N.Y. 59; Bigelow on Estoppel, 473; R.R. v. Cowell, 28 Pa. 329; Mechem on Agency, § 132; Clark v. Assurance Co., 146 Pa. 561; Sloat v. Ins. Co., 49 Pa. 14; Ins. Co. v. Kepler, 106 Pa. 28; Ins. Co. v. Tyler, 16 Wend. 400.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE McCOLLUM:

The policy in suit was by its terms void, if without the consent of the insurer indorsed thereon, there was when it was issued, or at any time during its continuance, other insurance upon all or any portion of the property covered by it. It is conceded that the plaintiff was the exclusive owner of this property, and that at the time of the fire and for seventeen months previous thereto there was other insurance in his name on a part of it. Prima facie therefore a case of double insurance was presented, and to the extent of it, at least, the policy issued by the defendant company was void. The "other insurance" was obtained from the London Assurance Corporation six months after this policy was issued, and soon after the fire an itemized statement and appraisement of the loss upon the property included in it was furnished to the corporation, with the assistance of its agents who had been duly notified of the loss. Four months after the fire the plaintiff forwarded to the defendant company his proofs of loss, and declared therein there was no other insurance on his property "known authorized or acknowledged" by him. These proofs having been returned to him for correction in accordance with the requirements of the company, he made and forwarded an amended statement, accompanied by a copy of the policy issued upon his property by the London Assurance Corporation, and declared that he then disclaimed any benefit under said policy and looked wholly to the defendant company for compensation for his loss. The facts above stated are not controverted, and they seem...