Long v. North British etc. Ins.

Opinion, Mr. Justice McCollum: The vital question in this case is whether the evidence was sufficient to justify the jury in finding a contract of insurance. In passing on this question, the previous dealings and relations of the parties, as well as their acts and declarations bearing directly on the pending dispute, must be taken into consideration. In other words, the latter must be construed in the light of the former. Long was engaged in the mercantile business at Olanta, and held a policy of insurance issued by the appellant company on his stock of goods, for $2,000. This policy expired on the first of November, 1887, and, prior to that time, the company, through its agents at Curwensville, informed him by letter that the insurance would be renewed if he did not give notice to the contrary. As he did not give any notice of a desire to terminate the insurance, the policy in suit was issued by the company and forwarded to its agents, who charged the premium to him, and in their account with the company charged themselves with it. Whether these charges were made before their interview with him on the eighth of November, the testimony does not inform us; but we learn from it that their [350] custom was to carry policies thirty clays or more, if requested by the assured, in which case he became their debtor for the amount of the premium, and the company accepted them as its debtor for it. In their former transactions with Long, he was allowed thirty days in which to pay the premium, and his policjr remained with them ; but it was mutually understood that it was in force for the term described therein, as effectually as if he had paid the premium upon it and taken it away. It was on this understanding that the credit was sought and granted, and that the premium was subsequently paid and received. In view of their custom, and previous dealings with the appellee, their possession of the policy in suit and the nonpayment of the premium thereon were consistent with a contract of insurance and his claim that he was their debtor for the premium and they were keeping the policy for him. When he called at their office on the eighth of November he did not allege that the renewal of his insurance was not authorized by him, nor refuse to pay the premium for it, but he inquired if he could have thirty days to remit for it, and was assured that he could have until the tenth of December. They admit that but for the fire they would have accepted the premium from him at any time on or before that day. The fire occurred on the 26th of November, and on the 28th they received his check for the premium and held it until the twelfth of December, without intimating to him that it was not satisfactory. Upon their books this premium was charged to him under date of November first, and credited under date of December 9th, and in their account with the company a corresponding charge and credit appear. These credits were entered after the fire and by the direction of special agent Piper, who was charged with the duty of investigating the claim in dispute. The foregoing facts are conceded or appear in the uncontradicted evidence, and assist materially in interpreting- and reconciling the conflicting testimony. We are satisfied upon a careful examination and study of all the evidence that it was the duty of the court to submit to the jury the question whether a contract of insurance existed between the contracting parties. The authority of the agents to waive the condition in the policy respecting the payment of the premium, was [351] conceded in the appellant’s sixth point and is not questioned here. It could not be successfully disputed upon the admitted course of dealing between all the parties concerned: Lebanon Ins. Co. v. Hoover, 113 Pa. 591. The ruling complained of in the second specification was upon a question in the cross-examination of appellant’s agent and witness, who had testified that there was no agreement of insurance, and who had received, after the fire and without objection, the appellee’s check for the premium, and held it two weeks, without presenting it for payment. The question was designed to test the accuracy of his previous statement, and his intelligence and integrity touching the matters under investigation, and we are not prepared to say that it exceeded the limits of a proper cross-examination. There is no error in the ruling on the offer of evidence contained in the third specification. It did not appear, and the offer did not propose to show, that Bloom was acting for Long or by his authority in obtaining the stamped envelopes. But if he had been so acting, and the appellant desired to prove his declarations, the offer should have embraced at least the substance of them, that the court might judge of their relevancy and materiality: Williams v. Williams, 84 Pa. 312. The remaining specifications do not require separate consideration. The answers to the appellant’s points in relation to the delivery of the policy, the antedating of the check, and the explanation of the book entries, were fair, full, and correct, and, as it is admitted that there was a tender of the premium on the tenth of December, it is profitless to inquire whether the receipt and retention of the check were the equivalent of it. The judgment is affirmed.