Morris L. Weisberg, Harry Norman Ball, Philadelphia, for appellants.
M. Stuart Goldin, Abe J. Goldin, of Goldin & Goldin, Philadelphia, for appellees.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Gunther, JJ.
[ 172 Pa. Super. Page 582]
Plaintiffs, who are engaged in the business of retailing household furnishings at 622 Arch Street in the City of Philadelphia, brought this action in assumpsit against defendants, who in the course of their general insurance business acted as plaintiffs' insurance broker. They sued to recover damages allegedly sustained
[ 172 Pa. Super. Page 583]
as a result of defendants' failure to notify the insurer that plaintiffs had moved to a new business location and that a certain water damage policy should be transferred to cover merchandise in the new place of business, the alleged consequence of that failure being that damage to plaintiffs' merchandise by water on August 10, 1947, was an uninsured loss. The jury returned a verdict for plaintiffs in he sum of $1,122.75. This appeal is from the dismissal of defendants' motions for a new trial and judgment n. o. v.
Of the defenses offered, only one is now material; namely, that even had the policy been in effect as to the new location, it would not have covered the water damage which gave rise to the loss. It insured 'against all Direct Loss And Damage caused solely by the accidental discharge, leakage or overflow of Water * * * from within the following source or sources: [inter alia] Plumbing Systems * * *.' But it specified that certain hazards were not covered, among them being 'loss or damage caused directly or indirectly, (a) by seepage, leakage or influx of water through building walls, foundations, lowest basement floors * * *; or (b) by floods, inundation, backing up of sewers or drains, or the influx of tide, rising or surface waters; * * *.' It also provided that it would not cover property located in the basement unless the same was raised at least four inches from the floor by means of skids or other device.
Appellants contend that the court below erred in taking from the jury factual issues raised by the testimony relating to the policy's coverage of appellees' loss and in holding as a matter of law that the loss would have been covered had the policy been in force.
According to appellants, the factual issues raised, and not submitted to the jury, were (1) whether the loss was caused by an 'accidental discharge' of water;
[ 172 Pa. Super. Page 584]
(2) whether it was caused by 'seepage' through building walls, by the 'backing up of sewers or drains,' or by 'surface waters,' all of which were hazards not covered by the policy; and (3) whether the ...