Appeal, No. 28, May T., 1953, from judgment of Court of Common Pleas of Mifflin County, Oct. T., 1950, No. 116, in case of Mifflin County Riding and Driving Association, also known as Mifflin County Riding Club Inc., and Russell National Bank v. The Western Mutual Fire Insurance Company of Urbana, Ohio. Judgment affirmed.
William S. Bailey, with him John B. Pearson and Storey, Bailey & Rupp, for appellant.
Albert Houck, with him Miles L. Cohen, for appellees.
Before Stern, C.j., Stearne, Jones, Bell Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
On January 28, 1950, a restaurant on the Reedsville Fair Grounds in Mifflin County was destroyed by fire. The owners, the plaintiffs in this case, made claim to the Western Mutual Fire Insurance Company of
Urbana, Ohio, defendant here, for benefits payable under the policy issued by that corporation. The defendant company refused payment, stating that the building had been described in the application for insurance as a "two story frame dwelling house and stable with approved roof dwelling, occupied by not exceeding two families," whereas, in point of fact, the building was a one-story structure used as a restaurant.
Since it was obvious from the whole description in the insurance application that only one building was being insured, the most ordinary business perspicacity would have dictated to the insurance agent that there was something wrong in the application, since we no longer live in an era where the stable forms part of the dwelling: Furthermore, the duly recognized agent of the defendant company, Otis J. Pandel, had visited the fair grounds and seen the building in question.
But the defendant company denies liability for a further reason. It says that the man who actually solicited the insurance was one Russell Roming and that he was not their representative. The record shows that Pandel first spoke to the owners about insurance and then, under circumstances which justify a conclusion of collaboration with Roming, the latter appeared on the scene a few days later and urged the purchase of insurance from the defendant company. Still later, Otis J. Pandel made out a policy for $3,000 and sent a bill for the premium thereon to Dyson F. Kline, one of the owners. The bill was paid for by check and the check cashed.
The plaintiffs produced evidence, at the trial of the lawsuit instituted for a recovery of the face value of the policy, that Roming was accepted and held out by Pandel as a person authorized to speak for him and ...