Watertown Fire Ins. Co. v. Simons
| Decision Date | 05 January 1880 |
| Citation | 96 Pa. 520 |
| Parties | The Watertown Fire Insurance Co. <I>versus</I> Simons. |
| Court | Pennsylvania Supreme Court |
Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ. STERRETT and GREEN, JJ., absent
Error to the Court of Common Pleas of Crawford county: Of October and November Term 1879, No. 178.
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
F. P. Ray, for plaintiff in error.—Cole could not legally act as a soliciting agent or surveyor for this company, he having no certificate of authority so to act from the insurance commissioner: 44th section Act of May 1st 1876, Pamph. L. 65; Act of April 11th 1868, Pamph. L. 831, sect. 10. Smith and he could not be agents of the company because contrary to public policy. Whatever plaintiff represented in his application he is bound to make good before he can resort to the defendants on the policy: Insurance Co. v. Arthur, 6 Casey 315; Cooper v. Insurance Co., 14 Wright 305; Gottsman v. Insurance Co., 6 P. F. Smith 212; Eilenberger v. Insurance Co., 8 Norris 464. The representations as to the age of the house and the number of the stories were certainly material.
Bole & Frey, for defendant in error.—If this foreign insurance company solicited risks in this state through agents not authorized by our statutes to act, and thereby enriched themselves, we know of no rule of law or decision of our courts that would enable them to set up their own violation of law as a ground of defence. Where the agent of the insurance company examines the premises and makes out the description, the representations of the assured are wholly immaterial, unless he in bad faith withholds information of a fact tending to increase the risk: Cumberland Valley Mutual Protection Co. v. Schell, 5 Casey 31. Again under the express conditions of the policy in question only erroneous representations materially affecting the risk avoided the policy. The testimony fully established the fact that notice of the loss was immediately given to the agent of the company, and that the agent at once informed the company.
Smith testifies that in 1872 he was employed by the company's state agent in Ohio, to take risks in Pennsylvania; that soon after he employed Cole to solicit applications, which were signed by himself and by Cole as sub-agent or surveyor; that he wrote and countersigned the policies on said applications; that a copy of each was sent to the company, and in that way they had notice of such subagency; and that soon after the loss of Simons's property he received orders to discharge Cole. Simons's application was signed "E. J. Smith, agent, by E. D. Cole, sub-agent." The evidence is ample that, in fact, the agency of Smith and sub-agency of Cole were recognised by the company. They were located and resided in Ohio, the company was chartered and located in New York. The company, defendants below, contend that Smith and Cole were not their agents, and cannot be so considered, because the laws of Pennsylvania, relative to foreign insurance companies, had not been observed by the company nor their said agents. That Simons knew the company and their agents were violating the laws, is not pretended; nor is it alleged the contract, aside from the statutory prohibition, was immoral. One of the objects of the statutes is protection of the people against worthless foreign companies, and as the insured is not required to see that the laws have been observed, before making a contract, we discover no reason, founded on public policy, which will enable a solvent foreign company, which has violated our laws in making a contract and receiving its consideration from an innocent citizen, to escape liability for non-performance, by setting up its own turpitude. Such defence will not avail for merit of him who pleads it. Against an innocent party, "no man shall set up his own iniquity as a defence any more than as a cause of action." The defendants' first point was rightly refused.
Complaint is made of the answer to defendants' third point, which was "affirmed if representations were material." The paper signed by the applicant contains no warranty, but in the policy "it is covenanted as a condition of this contract that all statements and...
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