New Holl. Turnp. Co. v. Farmers' Ins.

Opinion, Mr. Justice Clark: It was settled in F. M. Ins. Co. v. Turnpike Co., 122 Pa. 37, that the turnpike company had no insurable interest in the bridge in question which would sustain a policy of insurance. [544] For this reason, in an action upon the policy to recover the amount of the alleged loss by fire, the turnpike company failed to recover. Assuming that upon this ground the turnpike company might have a right to recover back the premium paid, was not the action barred by the statute of limitations ? It is conceded that the insurance was effected “ in good faith by both parties ” to the contract, and that the entire transaction is “ free from any allegation or suspicion of fraud.” The turnpike company no doubt supposed it had an insurable interest in the bridge, and the insurance company issued its policy under the same belief. When the loss occurred, and the question as to the insurable interest arose, it was determined that none existed. If there was no insurable interest, there was nothing insured ; the agreement to pay assessments was void for want of consideration, and the plaintiff was not bound for the assessments. The policy of insurance was dated 20th January, 1871; assessments were paid at various times between that date and 4th April, 1882, aggregating $95.10, the amount of plaintiff’s claim; the bridge was burned 25th November, 1882, and this suit was brought 28th January, 1890. Under these circumstances, the action would be for money had and received; and it is plain that a cause of action arose whenever the defendant had received moneys which in equity and good conscience it should not retain. It may be that the plaintiff was ignorant of its rights in this respect, until after the termination in this court of the action upon the policy, in October, 1888, but its ignorance of its rights would not stay the operation of the statute. The defendant, from the very commencement of that litigation, set up, by way of defence, the invalidity of the contract of insurance, arising out of the want of an insurable interest. It alleged nothing and did nothing inconsistent with this defence, and was in no way responsible for the plaintiff’s tardiness in bringing this suit. The law imposed upon the plaintiff the duty to know its rights, and it will be conclusively, presumed that it did know them, especially as the want of an insurable interest was positively and persistently asserted by the defendant in the previous action. The plaintiff cannot, therefore, be relieved from the closure of the statute on that ground. There are cases where the plaintiff’s rights arise upon the [545] act of the defendant, where he has no monition or warning whatever, either actual or constructive, which would reasonably lead him to suspect that a cause of action existed, and where no duty is imposed until such warning is received. Such are the cases of Leinhart v. Forringer, 1 P. & W. 492; Lichty v. Hugus, 55 Pa. 434; Fox v. Cash, 11 Pa. 207; Mitchell v. Buffington, 10 W. N. 361. But, in the case at bar, the cause of action was not of this character. Whether or not the plaintiff had an insurable interest was a matter equally within the knowledge of both parties. Whether the cause of action arose at the time of the payment of each of the several assessments, or at the date of the payment of the last assessment, or upon the refusal of the insurance company to pay the insurance or to repay the assessments, or at the date of the fire, in any event the statute of limitations is a bar to the plaintiff’s recovery. The judgment is reversed; and a judgment is now entered on the case stated in favor of the defendant.