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MINEO v. EUREKA SECURITY FIRE & MARINE INSURANCE CO. (10/03/56)

October 3, 1956

MINEO
v.
THE EUREKA SECURITY FIRE & MARINE INSURANCE CO., APPELLANT.



Appeals, Nos. 19, 20, 21, 22, Feb. T., 1955, from judgments of Court of Common Pleas of Lackawanna County, Sept. T., Nos. 1431, 1432, 1433 and 1434, in case of Tom Mineo v. The Eureka Security Fire & Marine Insurance Company; Same v. The Royal Insurance Company, Ltd.; Same v. Northern Insurance Company of New York; Same v. The Milwaukee Mechanics' Insurance Company. Judgments reversed.

COUNSEL

John W. Bour, with him Carlon M. O'Malley, for appellants.

Eugent Nogi, with him Alex Marcus and Everett A. Rosser, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Woodside

[ 182 Pa. Super. Page 76]

OPINION BY WOODSIDE, J.

We are faced here with the question of whether this Court should permit recovery from insurance companies

[ 182 Pa. Super. Page 77]

    for a fire loss, when this Court has already held that the insureds were properly convicted of procuring the burning of the property for which recovery is sought.

Joseph S. Tomaino and Thomas Preno were proprietors of a restaurant in Scranton which was destroyed by fire on October 17, 1948. The proprietors were convicted of criminally setting the fire and sentenced to the penitentiary. Their conviction was sustained by this Court in Com. v. Tomaino, 168 Pa. Superior Ct. 505, 79 A.2d 274 (1951).

Shortly before the fire, Tomaino and Preno purchased four fire insurance policies covering their restaurant. After they were arrested for causing the fire, they assigned their right, title and interest in and to these policies to Tom Mineo who had previously lent them money and had taken a chattel mortgage on the furnishings and fixtures of the restaurant. Thomas Mineo then brought suit against the four insurance companies to recover for the damage caused by the fire.

The insurance companies denied liability on the ground that the insureds had aided, counseled and procured the burning of the property and by reason of such fraudulent acts the policies were null and void.

At the trial the record of the insureds' conviction was admitted into evidence. Other evidence concerning their guilt was produced by the defendants, and the trial judge properly charged that if the insureds intentionally set the fire the plaintiff could not recover. The jury, however, returned a verdict against all of the defendants in the total amount of $3000.

The defendants then moved for a new trial on the ground that the verdict was against the weight of the evidence and for judgment non obstante veredicto on the ground that the conviction of the insureds was a bar to recovery under the policies. The court below

[ 182 Pa. Super. Page 78]

    dismissed both motions and directed judgments to be entered on the verdicts. Each of the four defendants appealed to this Court.

The assignee in an assignment of a fire insurance policy made subsequent to a fire stands in the identical position of the insured and his rights cannot rise above the rights of the insured. State Mutual Fire Insurance Company v. Roberts, 31 Pa. 438 (1858); Wilson to use v. Mutual Fire Insurance Co. of Montgomery County, 174 Pa. 554, 34 A. 122 (1896). Thus the legal question is ...


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