Moving Picture Co. of America v. Scottish Union & National Insurance Company of Edinburgh,

• Decision Date: 09 March 1914
• Docket Number: 119
• Citation: 244 Pa. 358,90 A. 642
• Parties: Moving Picture Company of America v. Scottish Union and National Insurance Company of Edinburgh, Appellant
• Court: Pennsylvania Supreme Court

90 A. 642

244 Pa. 358

Moving Picture Company of America v. Scottish Union and National Insurance Company of Edinburgh, Appellant

No. 119

Supreme Court of Pennsylvania

March 9, 1914

Argued January 12, 1914

Appeal, No. 119, Jan. T., 1913, by defendant, from judgment of C.P. No. 4, Philadelphia Co., March T., 1912, No. 6060 for want of a sufficient affidavit of defense in case of Moving Picture Company of America v. Scottish Union and National Insurance Company of Edinburg. Reversed.

Assumpsit on a policy of fire insurance.

Rule for judgment for $2,500, as to which sum the affidavit of defense was alleged to be insufficient. Before WILLSON, P.J.

From the record it appeared that the action was on an insurance policy in the sum of $5,000, issued 21st February, 1911, by the defendant company, insuring the plaintiff company "against all direct loss or damage by fire . . . to the following described property while located and contained as described herein, and not elsewhere, to wit, On the Rents of the Brick Buildings and Additions, including additions and extensions, situate 926-928 Market Street, Philadelphia Pennsylvania, rear of Nos. 920-22-24 Market Street." The statement of claim averred that at the time of the execution and delivery of the policy of insurance, prior thereto, and at the time of said fire (13th January, 1912) the plaintiff company leased the first floor of said described premises which consisted of three floors, under an agreement dated 19th January, 1909, the lease containing the following provision: "Lubin further agrees to and hereby does sublet to the company the first floor of premises Nos. 926-928 Market Street, Philadelphia, for the remainder of the term during which Lubin is in possession of the said premises, as tenant under lease with Felix Isman, agent, dated April 4, 1907, for the yearly rent or sum of $14,000, payable monthly in advance, in sums of $1,166.66, on the first day of each month, during the said term; rent to begin from July 20th, 1909." The statement further averred that at the time of the execution and delivery of the insurance policy, and prior thereto and from thence during all the years thereinafter set forth, the plaintiff leased the first floor of said premises to the Royal Amusement Company, a corporation, &c., at a rental of $1,166.67 per month, or $14,000 per year, which rental was during all of said times the fair rental value of the said demised premises; that said lease was dated 23d day of July, 1909, and was for a period of ten months, that a provision that either party might determine the same by giving to the other party three months' notice prior to the expiration of the term, but in default of such notice, the lease should continue from year to year; that said lease was so continued at the end of each current term thereof by failure of either party to give notice to determine the same during the times hereinafter set forth; that this lease contained the provision that in the event of the total destruction of the demised premises by fire the rents should cease from the date of such fire and possession of the demised premises should be surrendered by the lessee to the lessor. It was averred further, that in July, 1910, the said premises 926-928 Market street, were purchased by Max and Adolph Berg; that on the 13th January, 1912, the leased premises and the entire building were totally destroyed by fire, and that the rent therein ceased in accordance with the terms of the lease; that while the time necessary to restore the premises to the same tenantable condition as before the fire would have been six months, yet the building laws of the State prevented the restoration of the premises to the same condition as they were in before the fire, and, finally, that since the date of the fire the said Royal Amusement Company, plaintiff's lessee, had not paid any rent whatever to plaintiff; that plaintiff had not received since the fire any rent from the defendant, or any other person for the said premises. The action was to recover a full loss under the policy, to wit, the sum of $5,000 with interest. To the cause of action as thus stated the defendant company filed an affidavit of defense in which it was averred, 1st, that the premises destroyed could have been restored within six months from the date of the fire to the same condition they were in before, notwithstanding any building laws of the State; 2d, that by reason of the fire the plaintiff did not sustain any loss by reason of any conditions or provisions contained in the insurance policy, but that the Royal Amusement Company made no payments of rent for any time after the fire solely because of the condition in its lease releasing it from all liability for payment of rent in the event of the total...