Strunk v. Firemen's Ins. , 160 Pa. 345 ( 1894 )

Opinion by

Mb.. Justice Fell,

The policy of insurance issued by the defendant contained a provision relieving it from liability for loss “ if the premises hereby insured become vacated bj^ the removal of the owner or occupant without immediate notice to the company and consent indorsed thereon.” The house insured was occupied by a tenant, who moved out on the 4th of April. On the same day the plaintiff requested her husband to go to Stroudsburg, thirteen miles distant, and give notice of the vacation of the house to R. M. Jacoby, whom she supposed to be the agent of the company, and ask him to obtain the consent of the company. Her husband complied with her request on the 6th. Mr. Jacoby had until a month previous been the agent of the company, and had placed the insurance. He did not notify the plaintiff’s husband that he no longer represented the company, but agreed to give the necessary notice and obtain the consent desired. On the 7th he called on Mr. Bell, an insurance agent, who had business relations with the state agents of the company who lived at Philadelphia, and requested him to notify them. Mr. Bell on the 8th wrote as desired, and his letter was received on the 9th. The agent at Philadelphia at once replied, refusing a permit. On the 8th the house was destroyed by fire.

The sixth assignment of error raises the question of the right of recovery under the terms of the policy after the house became vacant, and the disposition of it is conclusive of the case. The learned judge in the course of his charge said: “Vacancy did not ipso facto avoid the policy by its terms; vacancy without immediate notice to the company and consent indorsed thereon did. The giving of notice was the duty of the .insured ; the giving of consent and the indorsing of it on the policy were optional with the company.”

The jury was instructed that immediate notice in the policy meant notice within a reasonable time, and that after vacancy followed by notice in a reasonable time the policy remained in force until consent was refused by the insurer.

We see no error in this instruction. Conditions involving forfeiture and exemption from liability should be strictly construed against the insurer, but the most liberal construction would not relieve the defendant in this case. The evident and only reasonable construction of the clause in question is that given by the learned trial judge. In case the premises became vacant, immediate notice was to be given, and it was then optional with the insurance company to continue or cancel the policy. The fact of vacancy did not work a forfeiture of the policy, but it imposed upon the insured the duty of notice'and gave to the insurer the right of cancellation. There would be no reason for notice and consent if the policy wer'e already void. Immediate notice must be construed to mean notice within a reasonable time, in view of the circumstances and positions of the parties. What would be reasonable time when the parties live in the same city or town, or have means of ready communication, would be very unreasonable if applied to the parties to this suit, one of whom lived on a farm six miles from a post office, twelve miles from a railroad and thirteen miles from the town in which the agent of the company, who had placed the insurance and to whom she would naturally look for information, resided.

The fourth assignment of error is to the instruction that although Mr. Jacoby’s agency had terminated, yet so far as concerned the plaintiff he was still the agent of the company, for the reason that she had not been notified of the changed relation. The thirteenth assignment is to the same effect. This was not an accurate statement of the law, and if it were apparent that it might have led the jury to a wrong conclusion we should feel obliged to send the case back for retrial. This error, however, does not seem to be fatal. Jacoby was not, on April 6th, the agent of the company, and the plaintiff in her dealings with him took all risks upon that point; but he became her representative for the purpose of transmitting notice, and acting for her he set in motion the agencies which resulted in notice to the insurer on the 9th. What he did was properly in evidence as showing how notice was sent, and also as showing good faith and diligent effort on the part of the plaintiff.

The only remaining assignment of error that requires notice is the seventeenth, which relates to the overruling of an objection to the offer by the plaintiff of proofs of loss, and the sufficient answer to this is that they were offered and admitted for a proper purpose, and read to the jury without objection made at the time.

The judgment is affirmed.