McKee v. Susq. Mut. F. Ins.

Opinion, Mr. Chief Justice Paxson : The appellant company insured the plaintiff against loss or damage by fire or lightning to the amount of $3,000, on his stock of tobacco, cigars, boxes, labels, etc. On October 17, 1887, during the life of the policy, his entire stock was destroyed by fire. On October 29,1887, the plaintiff furnished the company with sworn proofs of loss, amounting to $4,518.16. The company declined to pay, and in the court below defended principally upon two grounds, viz.: (a) That the risk had been changed in the occupation of the building or premises insured, of which change no notice had been given to the company as [557] required by tbe policy; and (b) that the plaintiff did not submit himself, his books, papers, etc., to the company for examination, as also required by the policy. In regard to the first objection, it appeared upon the trial below that the premises occupied were a portion of a large building, which portion only he had rented; that the changes in occupancy referred to did not occur in the part he occupied; that, some time after the insurance was effected, the landlord partitioned off a portion of the building in his possession and under his control, for a barber shop; this shop was rented to a tenant, who occupied it for that purpose, and lived and slept there with his son. Prior to this occupancy by the barber, no one had slept there; the building was wholly unprotected at night. It also appeared that a stove had been placed in the barber shop, and a galvanized iron pipe or smoke-stack had been carried up outside the building, and about two feet therefrom, to a point some distance above the roof. This was, briefly stated, the change of occupancy of which the company complains; a change with which the plaintiff had nothing to do, and which did not occur in any part of the premises occupied by him, and covered by the policy. Under these circumstances, the learned counsel asked the court to instruct the jury that the change referred to “ was a violation of the condition of the policy, and the verdict must be for the defendant; ” (see defendant’s first point, with assignment of error.) This was answered by the court as follows : “ Refused, there being no evidence to the effect that the insured changed the risk in the occupation of the building or premises described, etc., or that any change of the risk was made or permitted by him to be made by any person, thing, or circumstance over which he had any control, or for the making of which he had any right to ask the consent of the company.” This answer was clearly correct. The insured had made no change of occupancy; he had no control over that portion of the building; he might or might not have known of it; and, if he had, there is nothing to show that he knew the risk would be increased. On the contrary, he might well have supposed that it would be decreased by having some one to sleep in and protect it at night. The condition in the policy in regard to a change of occupancy contemplates an increase of the risk. Be-' fore the insured can be held to the duty of notifying the com [558] pany of such increase, he must be shown to have known of it: Leb. Mut. Ins. Co. v. Losch, 109 Pa, 100; Rife v. Insurance Co., 115 Pa. 530. The first above stated ground of defence was flimsy enough, but the second is more so. The company had the books of the insured, and ample opportunity to examine them and him in regard to the loss. The insured not only left his books at the office of the company, but called there more than once in person for the purpose of explanation or examination. We need not go into detail upon this point. It is sufficient to say that the action of the officers of the company was indicative of delay and an intention of lulling the insured into security, rather than a desire to promptly adjust and pay the loss. Their conduct in this respect is the more remarkable from the fact, asserted in the argument at bar and not denied, that the company had re-insured |1,500 of this risk in the Phoenixville Fire Insurance Company; had used these same proofs of loss in making their claim upon that company, and had collected therefrom the full amount of such re-insurance. Under such circumstances, ■ a quibble over the proofs of loss is unbecoming. We find no error in this record. Judgment affirmed.