Scheel v. German-American Insurance

Citations

• 228 Pa. 44
• 76 A. 507
• 1910 Pa. LEXIS 429

Syllabus

<p>Insurance — Fire insurance — -Cancellation—Notice—Substitution.</p> <p>1. A policy of fire insurance is a contract of indemnity, and unless it is canceled by mutual consent, or the policy provides that it may be terminated on the option of the parties and is so terminated, it will continue in force for the term for which it was written. If the right to terminate is reserved in the policy, the conditions upon which it is to be exercised must be strictly complied witli; and if a certain number of days is required to intervene before the notice to cancel is to take effect, the policy will still be in force and cancellation will not become effective until the expiration of the time named in the notice.</p> <p>2. If the insurance company allege as a defense in ail action on its policy that the assured has waived a five days’ notice of cancellation, or that he has replaced the policy by another policy and thereby relieved the company from liability, it is incumbent upon the company to aver in its affidavit of defense and prove on the trial, not only that such was the intention of the assured but that his intention was carried out with his consent and by his agreement with the company.</p> <p>3. The mere procurement of another policy on the same property and for the same amount after the notice and within the five-day limit does not disclose an intention on the part of the assured to cancel the earlier policy or to relieve the company from liability thereon; and in order that it may have such effect, the company must aver and prove that the assured consented and agreed to the cancellation and the substitution of the later for the earlier policy.</p> <p>4. A fire insurance policy contained a provision permitting the insurance company to cancel the policy on five days’ notice. The company gave a notice on November 7. The insured immediately took out a policy in another company without any notice to, or arrangement with, the first company. The property was destroyed by fir