Niagara Fire Ins. v. Miller

Citations

• 120 Pa. 504
• 14 A. 385
• 1888 Pa. LEXIS 505

Syllabus

<p>A policy of insurance contained the provision: “The assured by the acceptance of this policy hereby warrants that any application, survey, ■ plan, statement or description connected with procuring this insurance, or contained in or referred to in this policy, is true and shall be a part of this policy; that the assured has not overvalued the property herein described nor omitted to state to the company information material to the risk.”</p> <p>The company defended against payment on the grounds: (a) that at the time of the application the personal property insured was under a levy and execution which the assured did not disclose; and (V), that the . assured stated that there were judgments entered against Mm to the amount of $500, when in fact there were judgments against Mm to the extent of $1,500: Held,</p> <p>1. That, as the policy contained no clause that the insurance should ' cease if the property in question were taken in execution, and as the goods were still in the possession of the assured when the insurance was effected, he was not bound to report the fact of the levy unless he • had knowledge that it would increase the risk.</p> <p>2. That, as the warranty was not in terms a distinct warranty against incumbrances, and no evidence that the erroneous statement as to the judgments was by accident, ignorance or design, it was not error to ■ instruct, under the evidence in the case, that the company could waive the right to avoid the policy on the ground of the erroneous statement, and to submit the question of the fact of waiver to the jury.</p> <p>3. That the company was bound to good faith to the assured, and if, with knowledge immediately after the loss of every fact upon which to avoid the policy, it misled the assured for nearly a year by conduct indicating a desire to adjust and pay the loss, and never informed him it would not pay because the policy was avoided, it had no ground to complain if held to be estopped.</p>