Appeal, No. 203, April T., 1958, from order of Court of Common Pleas of Allegheny County, Jan. T., 1955, No. 1256, in case of Emerson Mott et al. v. Fireman's Insurance Company of Newark, New Jersey. Order reversed.
Allen N. Brunwasser, for appellant.
Preston J. McDonnell, with him Meyer, Darragh, Buckler & McDonnell, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).
[ 188 Pa. Super. Page 361]
On June 26, 1954 the defendant, Firemen's Insurance Company of Newark, New Jersey, hereinafter called "company," issued a policy of insurance to one Emerson Mott insuring a certain 1947 Mercury four-door sedan bearing Serial No. 799A1632540, hereinafter called car "A", against, inter alia, theft, to the extent of its actual cash value, for one year. The policy designated Emerson Mott as the named insured. It contained the following clause: "Loss Payee: Any loss under coverages D, E, F, G, H and I is payable as interest may appear to the Named Insured and Lawrence Ward, 1612 Fifth Avenue, Pittsburgh 19, Pa." The address of Emerson Mott, as stated in the policy, was 1415 Fifth Avenue, Pittsburgh 19, Pa. Clause D included loss or damage caused by theft. The policy, by a rider attached thereto, further provided: "Loss or damage, if any, under the policy shall be payable as interest may appear to Lawrence Ward, 1612
Fifth Avenue, Pittsburgh 19, Pa. and this insurance as to the interest of the Bailment Lessor, Conditional
[ 188 Pa. Super. Page 362]
Vendor or Mortgagee or Assignee of Bailment Lessor, Conditional Vendor or Mortgagee (herein called the Lienholder) shall not be invalidated by any act or neglect of the Lessee, Mortgagor or Owner of the within described automobile nor by any change in the title or ownership of the property; provided, however, that the conversion, embezzlement or secretion by the Lessee, Mortgagor or Purchaser in possession of the property insured under a bailment lease, conditional sale, mortgage or other encumbrance is not covered under such policy, unless specifically insured against and premium paid therefor; and provided, also, that in case the Lessee, Mortgagor or Owner shall neglect to pay any premium due under such policy the Lienholder shall, on demand, pay the same.
"Provided also, that the Lienholder shall notify the company of any change of ownership or increase of hazard which shall come to the knowledge of said Lienholder and, unless permitted by such policy, it shall be noted thereon and the Lienholder shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise such policy shall be null and void."
Lawrence S. Ward, bailor, joining Emerson Mott, bailee, as a plaintiff, sued defendant company on the above mentioned policy after the automobile covered by the policy was stolen, the theft having taken place on or about October 6, 1954. At the trial Ward testified that he owned two cars, both 1947 Mercury sedans, and both almost identical except for color; that he sold car "A" to Mott on or about June 24, 1954 and had obtained the policy of insurance in question on June 26, 1954, insuring the vehicle sold with Emerson Mott as the owner ...