Stauffer v. Penn Mutual Fire Ins. Assn. of Lancaster Co.

Opinion by Mb. Justice Fell, The defendant is a mutual insurance company, and the policy upon which this action is founded contained the following provisions applicable to the question involved: 1. The company shall not be liable for loss if there is either prior or subsequent insurance without its written consent. 2. A compliance with the terms of the policy shall not be considered waived unless the waiver is in writing and signed by the president or secretary. 3. The insurance shall cease at the time the property is insured in another company. 4. A member, in order to procure additional insurance without invalidating his policy, shall make application to the company, and the same must be allowed and approved at a regular meeting of the board of directors. The policy was issued to the plaintiff Sept. 3, 1887, and on May 8, 1888, he procured additional insurance in another company. There was testimony, to show that at the time the policy was' issued the insured told the- secretary of the company, who was also a director, that he intended to procure additional insurance, and that as soon as it was procured he notified him of the fact, and went through the building with him and was told by him that it was “ all right,” and that he should meet the directors at their regular meeting and have it fixed. No time was then named, the direction being “ any time you come up.” Subsequently, on notice from this director, who had charge of the [204] district in which the insured lived, he went to the office of the company at the time fixed for the meeting of the board of directors. When he reached the office' the meeting of the board had adjourned, and three only of the six directors were present, but of this he had no knowledge. At the office of the company he handed tire policy to Mr. Zortman, who took it to the president. The president said that he knew all about it, and directed Mr. Zortman to write the necessary consent on the policy. This was done by Zortman, who then showed the policy to the president, who approved it, and it was handed back to the plaintiff. There was no formal action by the board of directors, but there was the written consent which the conditions of the policy required; and if there was any waiver of the condition it was expressed in writing and approved by the proper officer. The condition that the insurance should cease at the time additional insurance was taken must be read in connection with the provision for procuring additional insurance, and what was done fell short of a literal compliance with the conditions only in that there was no formal allowance and approval of the additional insurance by the board of directors as such. The prohibition of additional insurance was of the substance of the contract, and notice of such insurance to a director and his assent and approval thereof would not save the policy, as a director has no authority to allow or approve additional insurance : Bard v. Penn Mutual Fire Ins. Co., 153 Pa. 257; Hook v. Mutual Ins. Co., 160 Pa. 229. But the question here is not whether a director could waive a condition of the policy, but whether the company, because of the acts and declarations of its officers, is now estopped from denying its approval of the additional insurance. The plaintiff, acting in good faith and intending to comply with all the conditions of his policy, sought information of the executive officers of the company as to what he should do, and fully complied with their directions. He went to the office of the company at the time of a regular meeting of the directors, and was at once asked if he had come in relation to the additional insurance on his property, and was told that they knew all about it and that it was all right. In his presence the president directed the indorsement of the company’s approval to be made on the policy, and after it was done [205] approved it and returned the policy to him; and he left with the assurance that he had fully complied with the regulations of the company, and that the policy was valid. He might well have. assumed, if he had chosen to act upon his own judgment of what was necessary to be done instead of relying upon the direction and assurance of the officers of the company defendant, that the board of directors had formally acted upon and granted his application. What was said and done by the officers of the company was equivalent to a declaration that all the conditions had been actually complied with, and estopped the defendant from controverting the fact. In Mentz v. Fire Ins. Co., 79 Pa. 475, the policy contained a condition that if additional insurance was procured it should be indorsed on the policy, and it was there held that the declaration of a general agent, of the company to the insured that the indorsement of the second insurance had been made on the policy, estopped the company from objecting to the want of an indorsement, Sharswood, J., saying: “Such a declaration made by a duly authorized agent or officer would clearly operate as an estoppel. It lulled the party to sleep by the assurance that the condition of the policy had been complied with, and that his indemnity was secure.” The judgment is affirmed.