Mentz v. Lancaster Fire Insurance

1. General agents of an insurance company have no power to waive any express condition in the policy. 2. Plaintiff insured in defendants’ company, one condition being that if additional insurance were effected, it should be endorsed on the policy ; the plaintiff effected additional insurance in another company with their agents, who were also agents of the defendants ; on inquiry by plaintiff, who gave his policy to the agent, he said that the endorsement, of the second insurance had been made on the first policy; the .endorsement had not in fact been made. In an action against the defendants for a loss, Held, that the declarations of their agent estopped them from objecting to the want of endorsement, and the plaintiff could recover.

Error to the Court of Common Pleas of Crawford county: Of October and November Term 1875, No. 157. This was an action of assumpsit, brought April 6th 1874, by J. M. Mentz against The Lancaster Fire Insurance Company. The action was to recover for loss by fire of the plaintiffs stock of dry goods, insured by the defendants, in a storehouse in Titus-ville. The defence was that the plaintiff had, contrary to the stipulations in the policy, effected an additional insurance on his goods in the Armenia Insurance Company, without the consent of the defendants endorsed on his policy. The casé was tried, May 4th 1875, before Lowrie, P. J. It was admitted that Murray & Clow were agents in Titusville both of the defendants and The Armenia Insurance Company. The plaintiff gave in evidence policy No. 300 of the defendants, insuring his stock of store-goods in his storehouse in Titusville; the policy was dated July 8th 1873, and on the same day countersigned, “ Murray & Clow, agents.” One of the conditions of the policy was:— “ That if the insured, or any persons or parties interested, shall have existing, during the existence of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage by fire on the property hereby insured, or any part thereof, not consented to by this company in writing, and mentioned in or endorsed upon this policy, then this insurance shall be of no effect; and if consent be endorsed thereon, the insured shall not be entitled to demand or recover of this company any greater portion of loss or damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance (whether valid or not), or made before or after the date of this policy.” He gave in evidence also an insurance for $400, effected for him in The Armenia Insurance Company, by policy No. 545, dated October 13th 1873, on the same goods and in the same storehouse. He gave evidence also of the burning of the goods, the amount of loss, &c. He then offered to prove that the agent effecting the policy for The Armenia company had knowledge that an insurance for $600 had been before effected in the Lancaster company, he having been' the agent in effecting the same. And further, that at the time of effecting the second policy the witness called the attention of the agent to the fact that the notice of the second ought to be endorsed on the first policy, and notice .thereof given to the Lancaster company, and that when the agent returned the policy to the witness the agent told him that the proper endorsement had been made on the Lancaster policy, he having both policies in his possession, and the witness relied on this because he could not read English; neither could Mentz read English. This for the purpose of excusing the want of such notice and endorsement. The offer was objected to, because the policy requires that the fact'ought to be assented to by the first company and endorsed. The court rejected the offer and sealed a bill of exceptions. The plaintiff having closed his case, defendants moved for a non-suit. The motion was allowed, and judgment of nonsuit entered. The plaintiff' took a writ of error, and assigned for error the rejection of his offer of evidence, and entering a judgment of non-suit.