Kilgallon v. Niagara Fire Insurance

Citations

• 74 Pa. Super. 109
• 1920 Pa. Super. LEXIS 105

Syllabus

<p>Insurance — Fire insurance — Sole ownership — Covenants—Waiver — Estoppel—Mortgage clause.</p> <p>In an action on an insurance policy, the defense advanced was that the plaintiff held the property insured in common with another person, although the insurance was written as if he owned the entire fee. Evidence was produced to show that sometime prior to the placing of the insurance, the plaintiff had divided the tract with his eotenant but had failed to execute the necessary deeds in partition. It was also shown that the plaintiff took the agent of the insurance company to the property to examine it for himself and to determine whether or not the company would approve of an increase in the amount of insurance on a building, located on the plaintiff’s part of the land, and at the same time fully explained to the agent the nature of his title.</p> <p>Under such circumstances the company was visited with knowledge of the exact condition of the title, before issuing its policy, and it cannot afterwards be allowed to assert that the plaintiff had forfeited his right to recover the insurance, or that it was only liable for one-half of the loss, on the ground that the plaintiff had only a half interest in the property.</p> <p>Evidence — Witnesses—Interest.</p> <p>In a suit on an insurance policy, a use-plaintiff and a legal plaintiff are both qualified witnesses. They are not joint plaintiffs, and the interest of the use-plaintiff is derived from and based upon the interest of the legal plaintiff. Neither witness could be concluded by the testimony of the other and any discrepancy in their assertions was a matter for the jury.</p> <p>Porter, J., dissents.</p>