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MCCOY v. HOME INS. CO. (11/15/51)

November 15, 1951

MCCOY
v.
HOME INS. CO.



COUNSEL

Norman Snyder, Chester, for appellant.

Robert W. Beatty and Butler, Beatty, Greer & Johnson, all of Media, Pa., Horace Michener Schell, Philadelphia, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Reno

[ 170 Pa. Super. Page 40]

RENO, Judge.

Plaintiff appealed from an order of the court below dismissing his motion for judgment for want of a sufficient answer. At bar, his counsel stated that he followed the Practice Act of May 14, 1915, P.L. 483, § 17, as amended, 12 P.S. § 735. That Act was suspended by Pa.R.C.P.No. 1452, 12 P.S. Appendix. The sufficiency of an answer is now tested by a preliminary objection under Pa.R.C.P.No. 1017 or by a motion for judgment on the pleadings under Pa.R.C.P.No. 1034 or No. 1037. Defendant did not object to the procedure adopted by plaintiff and we raise no question regarding it. Pa.R.C.P.No. 126.

Defendant insured plaintiff's interest in the personal property located in his luncheonette. It paid the agreed value of all the property lost in a fire on December 22, 1949, including the total of the payments made by plaintiff upon bailment leases for a soda fountain, a slicing machine, and a cash register, which were totally destroyed by the fire. Plaintiff sued for the balances due to the bailors of the above equipment under his bailment contracts.*fn1

The policy insured plaintiff 'to the extent of the actual cash value of the property at the time of loss,

[ 170 Pa. Super. Page 41]

* * * [but] in any event for [not] more than the interest of the insured.' Attached to the policy was a 'Contents Form', describing in general terms the property covered by the policy, including:

(1)*fn2 'Property sold but not removed, also the insured's interest in and legal liability for property held by the insured as follows: in trust or on commission, on joint account with others, on storage, for repairs, or otherwise held; * * *.'

(2) 'Subject in all other respects to the terms and conditions of this policy, this insurance is hereby extended to cover the insured's interest in and liability for property herein described purchased on any credit or installment plan * * *.' (Emphasis added.)

The policy and clauses (1) and (2) insure the interest of plaintiff in the property, not the property itself. The terms of this policy clearly distinguish the instant case from Home Ins. Co. v. Baltimore Warehouse Co., 93 U.S. 527, 23 L.Ed. 868, and other cases, upon which plaintiff relied.*fn3 In that line of cases, the policies insured the property, that is, the merchandise which was held in trust. Here only the nterest of plaintiff in his property, and in property held by him ' in trust * * * or otherwise held' was insured. The actual cash value of his interest in the equipment was not greater than the installments he had paid upon the bailment leases, and that amount was paid to him. Plaintiff's further claim, if any, ...


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