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BARRY v. AETNA INSURANCE COMPANY (06/27/51)

June 27, 1951

BARRY, APPELLANT,
v.
AETNA INSURANCE COMPANY



Appeal, No. 63, Jan. T., 1951, from order of Court of Common Pleas of Delaware County, Dec. T., 1947, No. 1102, in case of Stephen Barry et ux. v. Aetna Insurance Company. Order reversed; reargument refused August 1, 1951.

COUNSEL

Norman Snyder, with him James A. Cochrane, for appellants.

Fronefield Crawford, with him William J. MacCarter, Jr., and MacCarter & Crawford, for appellee.

Before Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Ladner

[ 368 Pa. Page 184]

OPINION BY MR. JUSTICE LADNER

Plaintiffs brought an action in assumpsit on a fire insurance policy. This case has been tried three times. The first trial resulted in a verdict for the plaintiffs. A new trial was granted. The second trial resulted in a directed verdict for the defendant. Again, a new trial was granted and at this trial a verdict was rendered for the plaintiffs and another new trial was granted. It is this last grant of a new trial which is assigned as error in the plaintiffs' appeal now before us.

We must first observe that the trial judge did not base the grant of a new trial on the ground that the verdict was against the weight of the evidence, but

[ 368 Pa. Page 185]

    filed the following certificate as the sole reason for the award: "I, HENRY G. SWENEY, Judge of the Court of Common Pleas of Delaware County, Pennsylvania, who tried the above case as of No. 1102, December Term 1947, hereby certify that, but for my interpretation of law relating to the extension of credit and the course of conduct of the dealings between the parties in this case as applied to the facts adduced at the trial I would not have granted a new trial."

On July 14, 1947, plaintiffs were the owners of two farms in Bethel Township, Delaware County. These properties were on Naaman's Creek Road and Larkin Road. On that date the barn on the Larkin Road property was struck by lightning and destroyed by fire. This is a suit to recover on a fire insurance policy allegedly issued and effective on that property on that date.

The plaintiffs proved the policy which was dated July 3, 1947, and delivered to the plaintiffs on July 15, 1947. They also proved that the premium was $45.50, $40.00 of which was paid July 14, 1947, and the balance paid the next day. Plaintiffs also introduced into evidence other policies on the Larkin Road property and also on the Naaman's Creek Road property together with the receipts for the payment of the premiums.

The uncontradicted but partly oral proof of the defendant showed the following facts: The fire started at 2:10 P.M. on the 14th of July, 1947. John Barry, a son of the plaintiffs, was at the fire and left about 4:00 P.M. He came to the office of Sweeney and Clyde, the admitted agents of the defendant, at 4:30 P.M., made application for a renewal policy on the Larkin Road property and paid $40.00 of the premium. He did ...


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