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OSTROFF ET AL. v. SPRINGFIELD FIRE & MARINE INS. CO. (12/12/52)

December 12, 1952

OSTROFF ET AL.
v.
SPRINGFIELD FIRE & MARINE INS. CO.



COUNSEL

Horace Michener Schell, Philadelphia, for appellant.

No book or appearance for appellees.

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

Author: Arnold

[ 172 Pa. Super. Page 212]

ARNOLD, Judge.

This appeal is from an order of the court below in an action of assumpsit refusing to enter judgment in favor of the defendant on the pleadings. The order of the court below will be affirmed.

The pleadings disclose that the plaintiff, the American Auto Finance Company, secured a policy of automobile insurance on an automobile owned by Frank DiGrazio, and that this policy was written by the Springfield Fire and Marine Insurance Company. The Finance Company obtained the insurance through its broker, Louis Altman. It had an insurable interest, to wit its encumbrance on the car of DiGrazio. First National Bank of Glen Campbell v. Burnside National Bank, 314 Pa. 536, 172 A. 641. The defendant issued the policy in the name of DiGrazio with a loss payable clause to the Finance Company. But since the Finance Company had an insurable interest, it may proceed directly on the policy as if it were the named insured. See Swoope v. United States Fire Insurance Company, 87 Pa. Super. 349.*fn1 The policy was issued and

[ 172 Pa. Super. Page 213]

    countersigned on August 31, 1944, but was written to cover the subject-matter from August 19, 1944 to August 19, 1945, i. e. it was pre-dated.

The pleadings aver that the policy was applied for on August 24, 1944, and also allege that the full premium was paid to the defendant on August 19, 1944. It appeared that the vehicle thus insured was damaged on August 21, 1944. The Finance Company alleges: 'It was the normal course of the [American Auto Finance Company] * * * to place at the end of each week orders for insurance with Louis Altman, Trenton, New Jersey, [for] all cars financed during the previous week, which course of conduct was well-known to the Defendant. * * *'

Altman, on or about August 24, made the request of the defendant that (in accordance with this understanding) the insurance be pre-dated on the 19th day of August, 1944, and at the time of the application for the insurance the Finance Company 'had no knowledge * * * of any loss or damage to the aforesaid motor vehicle. * * *'

The pleadings further allege: 'On or about August 28, 1944, Plaintiff received notice that the aforesaid motor vehicle had been damaged * * * on August 21, 1944 and this report was immediately sent to Louis Altman. A short time thereafter, in the normal course of business, [the policy now in suit] * * * was delivered to the Plaintiff, countersigned August 11[31], 1944.'

'It is generally held that where, at the time of an application for insurance there has been a loss but neither the applicant nor the insurer knew of this fact a recovery may be had on a policy subsequently issued, which was antedated so as to include the time at which the loss occurred'. 132 A.L.R. 1325; Long v. North British & Mercantile Insurance Company, 137 Pa. 335, 20 A. ...


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