MUTUAL FIRE INSURANCE Co. v. BLOCK.

October 5, 1885.

POLICY-INSURANCE- FIRE-CONDITIONS WAIVER - PRINCIPAL AND AGENT. Block in New York applied to Heller, an insurance broker, to place insurance on his stock and fixtures. Heller passed the application over to Anderson, another broker, who in turn sent it to Harrisburg, to one Huntzinger, the general agent of a Philadelphia insurance company. Huntzinger placed the risk with his company, who sent him a policy in Block's name. This policy contained conditions to the effect that the premiums must be paid at the office of the company in Philadelphia, or to an agent expressly authorized in writing to receive them ; also that in case of loss there must be furnished a certificate under the hand and seal of the chief of the fire department, stating that the assured had honestly sustained the loss; and finally, that the policy would not be valid until countersigned by Huntzinger at Harrisburg." Huntzinger countersigned the policy and forwarded it to Anderson, who gave it to Heller for Block. On January 14, 1881, Heller paid the premium, which he had previously received from Block, to Anderson. That night the insured property was damaged by fire. On January 25, 1881, Anderson forwarded the premium, with others, to Huntzinger, in the regular course of business between them. The latter refused to receive it, and the company declined to pay the loss. In a suit by Block on his policy. held, that he was entitled to recover. Huntzinger was the duly accredited agent of the company and did not exceed his authority in countersigning and forwarding the policy. He was also Anderson's principal. The company knew the risk was in New York and that Huntzinger must place it through an agent in that city. It was not error, therefore, for the court to refuse to charge that the company was not liable unless the premium was paid in Philiadelphia or to an agent authorized in writing to receive it; but to leave it to the jury, if whether the course of dealing by the company did not justify the belief that Anderson was duly authorized to receive the premium.

Block did not furnish the certificate from the chief of the fire department, because that officer refused to become a party to adjustments. Held, that this was immaterial, and that the company had no right to require such a certificate. Error to the court of common pleas, No. 2, of Philadelphia county. Debt, by David Block against the Universal Fire Insurance Company of Philadelphia, on a policy of insurance, containing inter alia the following conditions: This company shall not be liable by virtue of this policy, or any renewal thereof, until the premium be actually paid to the company at its office in Philadelphia, or to an agent expressly authorized in writing by the company to receive the same." "A particular statement of the loss shall be rendered

setting forth a certificate under the hand and seal of the chief of the fire department or other officer having charge of the investigation of fires stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has honestly sustained loss on the property herein described to the amount which such officer shall certify."

In November, 1880, Block, who was in business in New York city, employed one Heller, an insurance broker of the same place, to obtain insurance upon certain stock and fixtures in his factory on Bayard street. Heller took the application to S. R. Anderson, also an insurance broker, and the latter forwarded it to B. K. Huntzinger, who was the general agent of the defendant company, in Harrisburg. Huntzinger sent the application to the main office in Philadelphia, where the policy in suit was written, November 13, 1880, and returned to Huntzinger.

He countersigned the policy, under a provision thereof requiring him to do so, and sent it back to Anderson in New York to collect and forward the premiums to him at Harrisburg, according to the usual course of trade between them. Anderson delivered the policy to Heller for Block, and Heller, who had previously received the premium from Block, paid the same to Anderson on the morning of January 14, 1881. That night a fire occurred which resulted in damage to the insured property.

On January 25, following, Anderson forwarded the premium, with several others, to Huntzinger, it being his custom to retain premiums for a week or two, or even for a month, and then to send Huntzinger several at once. The latter, however, returned this premium to Anderson and informed him that he could not accept it.

Block then employed an adjuster in New York named Ettinger, to prepare his proofs of loss, and represent him in the settlement. A proof of loss was sent by Ettinger to the company defendant, upon the receipt of which the president wrote to Block: "It (the proof) is not in any respect in accordance with instructions in printed part of Universal Fire Insurance Company policy, No. 9,358, for making proof of loss, and we shall not recognize it as a proof of loss.” To this letter a reply was received from Ettinger in which, after stating that Block had handed it to him, he said: "Should the one point though bother you, that you want the certificate of the chief of the fire department, or other officer having charge of the investigation of fires, then I beg leave to state to you that my friend, Mr. Sheldon, the fire marshal of this city, refuses blank out to have his official capacity used for the purpose of adjusting losses. Your paragraph in this respect becomes null and void, and I doubt whether Mr. Sheldon has got the right to furnish you the remotest explanation of a fire, as you are an out-oftown corporation, and not a tax-paying company under the jurisdiction of the State of New York." There was no further correspondence and Block then brought this suit.

The defendants submitted the following points:

(1) "That under the terms of the policy in suit the company defendant would not be liable thereon until the premium had been actually paid to the company at its office in Philadelphia, or to an agent expressly authorized in writing to receive the same." Refused. [Second assignment of error.]

(2) "That there is no evidence in this case that the premium was paid prior to the alleged loss of the plaintiff, so as to make the company liable therefor. Refused. [Third assignment of error.]

The Court"They (the jury) may inquire whether the defendants had not, by their course of dealing, justified the belief that Anderson was duly authorized to receive the premiums on their behalf, and, if such were the case, the want of written evidence would not necessarily operate as a defense." [Fourth assignment of error.]

(3) "That the furnishing by the assured of a certificate under the hand and seal of the chief of the fire department, or of a magistrate or justice of the peace, as required by the third section of the seventh condition of the policy, was, unless waived by the company, a condi

tion precedent to the right to recover." Refused. [Fifth assignment of error.]

(4) "That there is no evidence in this case of a waiver of the condition which required a certificate under the hand and seal of the chief of the fire department, magistrate or justice of the peace, to be furnished the company as part of the particular account or proofs of loss." Refused. [Sixth assignment of error.]

The Court" The court leaves it to the jury to say whether the want of a certificate under the hand and seal of the chief of the fire department, magistrate or justice of the peace, has been excused or waived." [Eighth assignment of error.]

Verdict and judgment for plaintiff, whereupon the defendants took this writ of error.

James C. Sellers, for plaintiffs in error. Mayer Sulzberger, for defendant in error.

George P. Rich and

GORDON, J. The material assignments of error, in this case, with the exception of the third and fourth, may be disposed of in two general classes:

1. That relating to the waiver of the condition of the policy which exempts the company from all liability until the actual payment of the premium either at its office, or to an agent authorized in writing to receive the same.

2. That which embraces the rulings of the court on the effect and character of the proofs of loss.

We will first dispose of the third and fourth assignments, in which complaint is made of the learned judge of the lower court, that he refused to say to the jury there was no evidence that the premium was paid prior to the alleged loss, so as to make the company liable therefor, and that they were instructed to inquire whether the defendant had not, by its course of dealing, justified the belief that Anderson was authorized to receive the premiums on its behalf, and if such were the case the want of written evidence would not necessarily operate as a defense. We cannot agree that in either of these exceptions the court below has been convicted of error. As to the first, the evidence is that Block paid the required premium to Heller, his broker, from whom he received the policy before that instrument came into his possession, and if we are to believe Anderson's written receipts, he received this money on and before the 14th of January; then from Anderson it passed to Huntzinger in the shape of a check, but as that came to hand after the fire he refused to receive it. The next question involves not only the fourth assignment, but also the second, and may, therefore, be discussed together with them. As we have seen, Block paid the required premium, and in due course received his policy. In looking at the face of that policy he would discover that it was issued in consideration of the premium which he had paid, and though he might have discovered the condition that it would not be effective until the amount of that premium was paid into the treasury of the company, or to its agent, yet he might also observe this significant paragraph, "But this policy shall not be valid until countersigned by B. K. Huntzinger, agent at Harrisburg." Seeing this he might well and logically conclude:

(1). That Huntzinger was the duly accredited agent of the company; and (2). The policy being countersigned by him nothing more was required to assure its validity. The regular sequence of thought must necessarily be as follows: The premium has been paid; the policy has come to hand in due course; the consideration appears on its face as though paid to the company; it has been regularly executed, and the stamp of complete verity has been given to it by the counter signature of the company's agent. In view of all this, after the company had thus compromised itself, it seems almost idle to discuss the powers of Huntzinger, or to inquire particularly concerning their limits, nevertheless we think the evidence warrants us in saying he did not act beyond the strict line of his authority. Anderson sent the risk to Huntzinger to place in any company he thought fit; he, on his own motion, placed it in the defendant company, countersigned the policy and forwarded it to Anderson for the purpose of delivery; Anderson did deliver it, received the money and sent it to Huntzinger. Who then, in these particulars, was Anderson's principal if not Huntzinger? Moreover, the company well knew that this risk was in New York, where it had no office, and that Huntzinger was necessarily doing this and similar business through an agent in that city and for that matter, through this very broker. There is no doubt at all but that there would have been no difficulty whatever about the regularity of this whole transaction had the money reached Huntzinger before the loss, but if in such case the regularity of Anderson's agency and Huntzinger's method of doing business would have been recognized, we cannot see how or on what principle consistent with honesty and fair dealing they can now be repudiated. Again, we repeat, the company knew that Huntzinger was placing its policies in New York; moreover, it knew that he could not go there personally and take contracts of insurance, for he had no power so to do because the company had no such power; such contracts must be made, if at all, in the State of Pennsylvania; how then could it be supposed that the agent was to transact such business except through the regular channels of trade, that is, by the employment of banks or brokers. Under such circumstances as these we cannot say that the court did wrong in referring the evidence to the jury, and we think it was altogether sufficient to warrant the finding of that body. We may agree that the result would have been different had Heller, who was the immediate agent of the plaintiff, neglected to pay over the premium to Anderson or Huntzinger, for then the case would have had some resemblance to that of the Pottsville Mutual Fire Insurance Co. v. Minnequa Springs Improvement Co., 100 Penn. St. 137, for in that case the plaintiff's own agent would have been chargeable with neglect, which could not have been attributed to the company. Here, however, there is no neglect on the part of any one. Every thing was done in the regular and ordinary course of business and the defense set up must be regarded as utterly without merit. Nor can we see how the doctrine of estoppel can fail to apply in a controversy such as this. As we have seen, the countersigning of the policy by Huntzinger, in accordance with the company's own direction expressed in writing on the face of that instrument, gave it the appearance of a valid paper, and thus Block

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was assured that every prerequisite had been complied with. whose default then, if any such there was, did it pass through Anderson and Heller to the plaintiff? Intentionally and in the regular course of business the agent of the defendant issued that policy, and no attempt was ever made, as in the case above cited, to countermand or revoke it. It was then the default of the company by which Block was misled, and we are at a loss to divine by what rule of law that default can be thrown over on the assured. It is a clear case of equitable estoppel and the company must bear the consequences of its own neglect. The other point has nothing at all in it. The proofs of loss were made out by a competent adjuster, and if they were not certified by the fire marshal of New York it was because he properly refused so to do. The company had no right to require a public officer to act in the adjustment of its risks, and the neglect of the assured to even ask a certificate from that officer would have been no default. Besides this, it was the duty of the company, on the receipt of the proofs, to return them, if they were objectionable, and point out the particular defects. This it refused to do, but replied generally that they did not correspond with the printed instructions, and refused to receive them. This was not sufficient; insurance companies cannot expect thus to escape from the payment of an honest claim through technicalities which do them no harm and which they themselves can easily cure. Beatty v. Insurance Co., 66 Penn. St. 9; Insurance Co. v. Flynn,

The dissolution of an attachment, issued under the act of March 17, 1869 — P. L. 9-by the court below, cannot be reviewed on writ of error.

The sixth section of said act gives any judge of the court of common pleas discretionary power to dissolve such an attachment, and the statute gives the supreme court no power to review this discretion.

The proceedings, being contrary to the course of the common law and purely statutory, can only be reviewed on certiorari.

Error to common pleas, No. 3, of Philadelphia county.

Attachment under the act of March 17, 1869, issued by Thomas W. Wetherald against David D. Shupe, returnable the first Monday in November, 1884. The Shupe & Noble Furniture Co., limited, was made garnishee. Personal service was made on the defendant and also service on the secretary and treasurer of the partnership. Defendant claimed that an inventory of certain furniture attached was served on him, but not of the attachment of any interest in the partnership limited until December 1, 1884.

Defendant took a rule "to show cause why the attachment as such so far as affects all the right, title and interest of the defendant in the Shupe & Noble Furniture Company, limited, should not be set aside." This rule after argument was made absolute, the court holding that a

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