Reck v. Hatboro Mut. Live-Stock & Protective Ins. Co. of Montgomery County

• Decision Date: 01 October 1894
• Docket Number: 252
• Citation: 163 Pa. 443,30 A. 205
• Parties: John H. Reck, Appellant, v. Hatboro Mutual Live Stock and Protective Ins. Co
• Court: Pennsylvania Supreme Court

30 A. 205

163 Pa. 443

John H. Reck, Appellant, v. Hatboro Mutual Live Stock and Protective Ins. Co

No. 252

Supreme Court of Pennsylvania

October 1, 1894

Argued January 31, 1894

Appeal, No. 252, Jan. T., 1894, by plaintiff, from judgment of C.P. Montgomery Co., Oct. T., 1892, No. 192, entering nonsuit. Reversed.

Assumpsit on policy of live stock insurance.

At the trial, before WEAND, J., it appeared that on May 13, 1889 defendant insured against loss by accident a horse belonging to plaintiff. Section 14 of the company's by-laws was as follows: "The insurance in this company shall be confined to a distance not exceeding twelve miles from the borough of Hatboro." Article 10 of the constitution provided that "No stock shall be insured by this company unless in a healthy condition, and must have been within the limits of the company at least 30 days."

At the time of insurance plaintiff resided at Jenkintown, about seven miles from Hatboro. About Nov. 19, 1891, he removed permanently to Philadelphia, about seventeen miles distant from Hatboro. He took with him the horse in question, and kept him at a livery stable near his residence. The horse was kicked by another horse in the stable, as a result of which he had to be killed. The court entered a compulsory nonsuit and subsequently refused to take it off.

Error assigned was refusal to take off nonsuit.

Judgment reversed and procedendo awarded.

Wm. F. Dannehower, for appellant, cited: Weisenberger v. Ins. Co., 56 Pa. 442; Robertson v. French, 4 East, 135; Anderson's Law Dictionary, "Insurance," 576; Wood on Ins., pp. 146, 444; Pipe Lines v. Ins. Co., 145 Pa. 346; Ins. Co. v. Brock, 57 Pa. 74; Ins. Co. v. Shoe Factory, 80 Pa. 407; Ins. Assn. v. Evans, 102 Pa. 281.

The policy means that the property must be within the limit at the time of the insurance.

There was no stipulation as to forfeiture.

N. H. Larzelere, M. M. Gibson with him, for appellee, cited: London, etc., Ins. Co. v. Lycoming Ins. Co., 105 Pa. 431; Ins. Assn. v. Evans, 102 Pa. 281.

Before GREEN, WILLIAMS, McCOLLUM, DEAN and FELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

This is an appeal from the refusal of the court below to set aside a compulsory nonsuit in an action on a policy of insurance. The action was brought to recover compensation for the loss the plaintiff sustained in the death of his horse in a stable in Philadelphia, from an injury received there, and the nonsuit was entered on the ground that by removing his horse from Jenkintown, where the insurance was effected, to the place where the injury was received and the death occurred, he forfeited his right to the indemnity guaranteed by the policy. Two questions are raised by the appeal. They are (1) whether there was a forfeiture, and (2) if there was, whether there was evidence of a waiver of it by the company. The first question turns on the construction of section 14 of the by-laws which is as follows: "The insurance of this company shall be confined to a distance not exceeding twelve miles from the borough of Hatboro." The learned judge of the court below construed this by-law to mean that the property must be kept within the distance limit to entitle the insured to indemnity in case of loss, and he cited 95 American Decisions, 751; Wood on Ins., sec. 47; London Ins. Co. v. Lycoming Ins. Co., 105 Pa. 424, and Insurance Association v. Evans, 102 Pa. 281, as in accord with and supporting his construction. In all the cases cited except in Ins. Co. v. Evans, supra, the location of the property was designated in the policy. In some of them the designation of the location of it was held to be merely descriptive; in others it was regarded as constituting a continuing warranty that the location of the property should not be changed. This seeming inconsistency in the decisions is due to the fact that the question whether the designation in the policy of the location of the property is descriptive only or a warranty that it shall not be removed, depends to some extent on the nature and uses of it. In ...