Susquchanna Mut. Fire Ins. Co. v. Swank

• Decision Date: 30 December 1882
• Parties: Susquehanna Mutual Fire Insurance Company <I>versus</I> Swank.
• Court: Pennsylvania Supreme Court

102 Pa. 17

Susquehanna Mutual Fire Insurance Company versus Swank.

Supreme Court of Pennsylvania.

December 7, 1882.

December 30, 1882.

December 7th 1882.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Somerset county: Of July Term 1882, No. 245.

COPYRIGHT MATERIAL OMITTED

Valentine Hay (with him Samuel Gaither and Fleming & McCarrell), for the plaintiff in error.—The court below erred in omitting to give distinct answers to our several points: Act of March 24th 1877, P. L. 38; Tenbrooke v. Jahke, 27 P. F. S 396; Hood v. Hood, 2 Grant 235; Slaymaker v. St. John, 5 Watts 27; Noble v. McClintock, 6 W. & S. 58. The parol testimony to contradict the terms of the application and policy, was inadmissible: Keener v. Bank, 2 Barr 239; Hackney v. Ins. Co., 4 Barr 185; Martin v. Berens, 17 P. F. S. 463. There was no "mistake" in the sense in which mistake is a ground of relief in equity. Moreover, the defendant did not seek to reform the contract, but to escape all liability. The company was no party to the alleged misrepresentations, and Swank by accepting and retaining the policy without objection, and by paying one assessment thereon, enjoyed the protection of the policy, and estopped himself from denying liability on future assessments. The return of the policy to Hicks was not a good surrender to the company. Hicks was only an agent to solicit insurance, and could not destroy the relation between the company and the insured: Buckley v. Columbia Ins. Co., 2 Nor. 299. The tenor of the entire charge was partial, and tended to mislead the jury: Bovard v. Christy, 2 Harris 267; Penna. R. R. v. Berry, 18 P. F. S. 279; Gregg v. Jamison, 5 P. F. S. 468; Penna. R. R. Co. v. Berry, 18 P. F. S. 278; Rosenberger v. Ins. Co., 3 W. N. C. 16.

W. H. Koontz and H. S. Endsley, for the defendant in error, were not present at the argument. In their printed brief, which was submitted to the court, they contended that the plaintiff company could not avail themselves of the misrepresentations or mistake of their soliciting agent, caused by the misrepresentations of their general agent, and made in the scope of his employment, whereby the defendant was lured into accepting a policy on the assessment plan, which he expressly told the agent he did not want, instead of one on the annual interest plan which he did want, and which he supposed he had received, until after he received notice of assessment, when he paid that assessment under protest, and promptly returned the policy to the agent who sent it to the company, before the losses were incurred which the assessment in suit was levied to meet: Eilenberger v. Ins. Co., 7 W. N. C. 363.

Mr. Justice PAXSON delivered the opinion of the court, December 30th 1882.

This was a suit against a member of a mutual fire insurance company to recover an assessment regularly made to cover losses and expenses incurred during the life of the policy. The policy was issued to the defendant on June 9th 1877 in pursuance of an application in writing made by the defendant on June 1st 1877. The policy was sent to and accepted by him. In August or September of the same year an assessment of $24 was made upon his policy, which he paid under protest. The assessment for which this suit was brought was made September 13th 1878 for the sum of $39, and defendant notified to pay the same on September 16th of the same month.

Payment was resisted upon the ground that the defendant had been told by the company's agent at the time he applied for insurance, that he would not be liable to any assessments; that he, the agent would take his application upon "the annual interest plan," under which no assessments would be made. His testimony and that of the agent to this effect was admitted in evidence against the objection of the plaintiff. The application was for insurance on the ordinary assessment plan. It was in writing, signed by the defendant, witnessed by the agent. It contains this distinct promise to pay assessments: "For value received and in consideration of a policy of insurance to be issued by the Susquehanna Mutual Fire Insurance Company of Harrisburg, Pa., upon the approval of my application for insurance in said company, of this date, I promise to...