Somerset County Mutual Fire Ins. Co. v. Usaw

• Decision Date: 01 March 1886
• Docket Number: 187
• Citation: 112 Pa. 80,4 A. 355
• Parties: Somerset County Mutual Fire Insurance Company v. Usaw and wife
• Court: Pennsylvania Supreme Court

4 A. 355

112 Pa. 80

Somerset County Mutual Fire Insurance Company v. Usaw and wife

No. 187

Supreme Court of Pennsylvania

March 1, 1886

Argued February 12, 1886

ERROR to the Court of Common Pleas, of Somerset county: Of July Term, 1885, No. 187.

Assumpsit brought by John Usaw and Lydia Usaw, his wife, against the Somerset County Mutual Fire Insurance Company, November 1st 1883, to recover the insurance on a two-story frame house which was burned between one and two o'clock on the morning of the 13th of May, 1883.

The following facts appeared on the trial before BAER, P.J.:

The policy of insurance on which the suit was brought was issued on the 1st day of February, 1883, and insures "Dr. John Usaw and wife against loss or damage by fire, to the amount of twenty-four hundred dollars on the property described in the application which is declared to be a part of the policy." The property insured was a "two-story stone and frame house and store-room, and a stone and frame spring and ice house." A tenant occupied the property to the termination of his lease, which was on the 1st day of April, 1883, and then, after this time, the property was left unoccupied. The key to the house was sent to Usaw by the late tenant on the 2d day of April, 1883, in a registered letter with notice that the buildings were unoccupied. It was admitted that Usaw received the registered letter containing key and notice.

About the 10th of April of the same year, Usaw was at Friedline's Mills, where the building was located, and was around and in it. He left there and went home without putting a tenant in the house, and without giving notice of this to the company.

On the night of the 11th of May, 1883, Usaw, who lived some two hundred miles away from the insured property, was seen near it. When he was seen there and asked where he was going at that late hour of night, he told him a falsehood, and left.

He explained this by saying that he had lost his pocketbook and was then on his way to search for it, and until he found it he did not care to have any one know where he was going.

On the afternoon of the next day, the 12th of May, he was again seen around the property, heard in the house, and seen locking the front door; that night, or rather in the morning between one and two o'clock, the fire was first seen bursting through the eaves of the roof.

The property when rented only yielded from $55 to $60 rent per annum. The burnt portion of the buildings was valued by the plaintiffs, at the time of the insurance, at $3,000. Under the policy the plaintiffs are entitled to recover two thirds of the cash value of the buildings burned, at the time of the fire.

The defendants set up as one of their defences that Usaw had burned the building.

The application, which was put in evidence by the plaintiffs, set out that the premises insured were "occupied by a tenant for dwelling and store."

The policy provides "that in case the above mentioned premises shall at any time, after making, and during the time this policy would otherwise continue in force, be so altered or appropriated, applied or used, to or for the purpose of carrying on or exercising therein any trade, business or vocation, which according to the By-laws added conditions class of hazards, or rates hereto annexed, would increase the hazard, unless it be by the consent and agreement in writing of this corporation, and indorsed upon this policy, then and from thenceforth so long as the same shall be so appropriated, applied or used, this policy shall cease, and be of no force and effect."

Article 15 of the by-laws, which are printed on the back of the policy and made a part thereof, provides: "Applications for insurance, or for any change in a policy of insurance, in all cases, may be passed upon, or approved, or rejected by two directors."

Article 19 provides that, "Whenever any alteration shall be made in any building insured which changes the class of such building, by increasing the risk, such alteration shall void the policy, unless the insured give notice to the secretary of the company, and pay a sum in addition equal to the increased hazard."

The defendant claimed that the insured building was so appropriated, applied and used, as to increase the hazard and change the class of such building, and that the evidence should have been admitted, so that this question could have been submitted to the jury.

The defendant claimed that the plaintiffs did not comply with the terms of the application, which is declared to be made a part of the policy; therefore, the policy was forfeited, and the court should have instructed the jury as requested, to find for the defendant.

The application signed by John Usaw and Lydia Usaw declares that "if any untrue answer has been given to the foregoing interrogatories, whereby the said company have been deceived as to the character of the risk, or if any change be made as to tenants or occupancy of these premises, without being notified to this company and indorsed upon their policy, then this insurance to be void, and the policy be of no effect."

The moving out of the tenant, with notice to the plaintiffs, and the buildings remaining unoccupied until burned, covering a period of six weeks, the defendant held was a change of "occupancy of the premises," and no notice being given to the company, worked a forfeiture of the policy.

The defendant made the following offer:

"The counsel for the defendant propose to prove by John Hicks, the witness on the stand, that the plaintiffs gave no notice to the company that the property insured was left vacant for a period of six weeks; that the building was insured as a dwelling-house and store, and that by reason of the property being left unoccupied, the hazard was increased to the company; this for the purpose of showing that the acts of the plaintiffs worked a forfeiture of the policy."

Objected to, that under the policy no such notice was required, and that there was no warranty or representation that the building was to continue to be occupied as a store-house and dwelling, and the testimony is irrelevant.

Objection sustained, exception noted and a bill sealed for the defendant. (First assignment of error.)

The defendant presented inter alia the following points: That inasmuch as the building which was destroyed was insured as a dwelling and store-house, and was occupied at the time of the insurance, and as the uncontradicted evidence shows that said building was left vacant and unoccupied from the 1st of April, 1883, to the 13th of May, 1883, at which time the fire took place, and that no notice was given to the defendant company that the same was left unoccupied during said period, this was such a failure on the part of the plaintiffs to comply with the conditions of the application and policy as works a forfeiture thereof, and the verdict must be for the defendant.

Which point the court answered as follows:

"Answer: This we refuse; that notice was not required." (Second assignment of error.)

That if the jury believe that John Usaw either set fire to said building, or caused the same to be set on fire, then, he being a party in interest in said policy, there can be no recovery by the plaintiffs in this case.

Answer: -- If he either set it on fire himself, or had somebody else set it on fire and destroy it, then there could be no recovery here, because he is a party plaintiff, and presumably has an interest so far as the case stands here. When we say that if he burned it or had it burned, which is the same thing, there can be no recovery, we must also instruct you that the burden to prove that he burned it is on the defendant, who alleges it. Has the defendant company satisfied you by proof that John Usaw burned this property? [Before the defendant can be relieved from payment on account of the building being burned by him, it must have established the fact that John Usaw burned the house by testimony as strong as the Commonwealth would be required to produce in case John Usaw was being tried in the Criminal Court on a charge of arson for burning the house.] The plaintiff, Usaw, in this case is not required to prove that he did not burn the house; the defendant must prove by direct or circumstantial evidence that satisfies you that he did burn it, or this ground of defence fails. It is not necessary that they should prove it by some one who saw him burn the house, because a crime may be proved by circumstantial evidence; but these circumstances must be of such a character as to satisfy you that he was there and did it. (Third assignment of error.)

That under the pleadings and evidence in this case, the verdict must be for the defendant.

Answer: -- This we refuse. (Fourth assignment of error.)

Verdict for the plaintiffs in the sum of $1,400, and judgment thereon.

The defendant moved the court to grant a new trial.

This motion the court overruled, filing the following opinion:

On close examination of the evidence, the charge and the points answered, we fail to discover material error to the injury of defendant.

If we were now charging the jury, we should eliminate from the answer to defendant's fifth point the following clause: "And before the defendant company can be relieved from payment on this account it must have established the fact that John Usaw burned the house, by testimony as strong as the Commonwealth would be required to produce in case John Usaw was being tried in the criminal courts on a charge of arson for burning the house." We find authority for so ruling in Bennet on Insurance and cases cited from New York and Maine.

But on the strength of the Con. Ins. Co. v. Delpeuch, 82 P.S.R., 225, we are now of opinion that the clause referred to was...