Appeal, No. 241, Jan. T., 1950, form judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1948, No. 2856, in case of Harold L. Presson v. Commonwealth Mutual Fire Insurance Company of Pennsylvania. Judgment affirmed.
J. Webster Jones, for appellant.
Bertram Bennett, with him Jenkins, Bennett & Jenkins, for appellee.
Before Drew, C.j., Stearne, Jones, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff insured with the defendant company the fixtures, equipment, furnishings and decorations of a Club against loss by fire while "located and contained as described [in the policy]... but not elsewhere." The policy recited the insured property as being in a building "occupied as a Club situated E/S of U.S. Highway #61 on Part of U.S. Private Survey No. 1062 Twp. 24 Range 14, New Madrid County one mile South of Sikeston, Missouri, State of Missouri." Damage to the property by fire having occurred, the defendant refused to pay the plaintiff's claim for loss on the ground that the building in which the property was contained was located not on Survey No. 1062 but on Survey No. 1032.
The plaintiff sued on the policy to recover the amount of his loss. The defendant's answer set forth as its defense the ground above indicated. The proofs at trial showed that the described location of the building containing the insured property was given the defendant company by a New York brokerage agency which had received it from a broker in Sikeston, Missouri, through whom the plaintiff had placed the insurance. The plaintiff himself did not furnish his broker with the description used in the policy and testified that Survey No. 1062 or No. 1032 meant nothing to him whatsoever. The learned trial judge submitted the case to the jury upon instructions that if the jury found that there was no intent on the part of the plaintiff to give a false description of the location of the property, but that the incorrect survey number was merely a mistake, and the location of the property was otherwise sufficiently indicated, the jury could conclude that the property was properly covered by the
policy. The jury returned a verdict for the plaintiff for the amount of his claim. The defendant moved for judgment n.o.v. which the court en banc refused and entered judgment on the verdict from which the defendant appeals.
The only mistake the learned trial judge made was in submitting the case to the jury. Binding instructions for the plaintiff should have been given. None of the facts was controverted; the proven amount of the plaintiff's loss was undisputed; and there is not a word of evidence to support a finding that the number 1062 instead of 1032, in respect of the U.S. Survey, was anything other than a typographical error or, at worst, an innocent mistake. The question involved was, therefore, one of law for the court. However, since the jury returned the proper verdict, the submission was harmless; and, the learned trial judge did satisfactorily dispose of the legal question in refusing, for the court en banc, the defendant's motion for judgment n.o.v.
The sole question of law involved is whether the mistake in the survey number affected the character of the risk or was an immaterial variance. The learned court below effectively and succinctly answered that query when it said that "the East side of U.S. Highway #61, in Township 24, Range 14, new Madrid County, one mile South of Sikeston, Missouri" accurately and adequately described the location of the building in which was contained the property which the plaintiff intended should be insured and which the defendant company intended to insure. No further description was needed. The survey number amounted to no more in the circumstances than inconsequential surplusage. The pertinent legal criterion is whether there is sufficient description, ...