No. 136 October Term, 1977, Appeal From the Order Entered August 30, 1976, by the Court of Common Pleas, Civil Action-- Law, of Luzerne County at No. 1318 July Term, 1966.
Barry A. Yelen, Wilkes-Barre, for appellants.
Robert E. Marsh, Jr., Wilkes-Barre, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Spaeth, J., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 256 Pa. Super. Page 314]
This appeal arises from a jury verdict for the defendant in an assumpsit action in the Common Pleas Court of Luzerne County. Appellant's motions for new trial and judgment n.o.v. were denied. We affirm the decision of the lower court.
Appellant Patrick Campbell owned a wooden frame residential building in Wilkes-Barre, Pennsylvania. The building was unoccupied for the purpose of converting it from a three apartment to a six apartment dwelling. Pursuant to an oral contract, appellant Morris Yelen, a licensed general building contractor, was making, or preparing to make the necessary alterations in the building. Yelen testified that Campbell owed him a sum of money for work done on the premises, although at trial evidence was adduced that no
[ 256 Pa. Super. Page 315]
signs of physical changes on the building by Yelen were evident. When the money was not forthcoming, Yelen took out a fire insurance policy on the building with Royal Indemnity, in March, 1965.
In June, 1965, a fire occurred at the insured premises and suit was brought in 1974 to recover the insurance proceeds from the appellee company.*fn1 At trial, the insurance company argued that the policy was not enforceable at the time of the fire due to the fact that an effective cancellation*fn2 had been mailed to appellants prior to the fire, and that Yelen had no insurable interest under the policy. The jury found for the insurance company.
We will discuss two of the major issues presented on appeal:*fn3 first, whether the trial court erred in charging the jury that any defense the insurance company had against the owner of the building, Campbell, was also good against the contractor, Yelen,*fn4 and second, whether the insurance company's proof of notice of cancellation was properly admitted as an exception to the hearsay rule.
In deciding the first issue, we must look to the underlying question of whether or not the contractor, Yelen, had an insurable interest in the property involved. In an action on a fire insurance policy, the question whether a person had an insurable interest is one of fact for the jury to decide. Shindler v. Ins. Co. of North America, 121 Pa. Super. 483, 184 A. 262 (1936). ...