Opinion
November 21, 1934.
April 15, 1935.
Pleading — Statement of claim — Attaching copy of insurance policy — Action for unearned premium upon cancellation.
1. Where an action is brought to recover the return or unearned premium of a policy payable to the insured on cancellation of the policy, it is not necessary that a copy of the policy be appended to the statement of claim.
Unincorporated associations — Action by representation — Action as ratification of act of agent — Cancellation of insurance policy — Unearned premium — Cancellation directed by bishop of diocese.
2. An unincorporated association, consisting of many members, may sue by representation.
3. In an action on behalf of an unincorporated religious association to recover the return or unearned premium due the association on the cancellation of a fire insurance policy covering its property which had been issued by the defendant, a defense that the pastor of the religious group had acted without authority in cancelling the policy, was without merit, since the action of the association in bringing suit constituted in itself ratification of the action of the pastor.
4. Where the policy in such case provided that it might be cancelled at any time at the request of the insured by giving stated notice, the right of cancellation by the insured was absolute, and it was no defense that such cancellation had been arbitrarily directed by the bishop of the diocese.
Appeal No. 92, April T., 1935, by defendant from judgment of C.P., Allegheny County, January T., 1934, No. 3517, in the case of J.C. Hasinger et al. v. New York Central Mutual Fire Insurance Company.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Assumpsit. Before PATTERSON, J.
The facts are stated in the opinion of the lower court, PATTERSON, J., as follows:
Plaintiffs are members of an unincorporated association, organized for the purpose of religious worship. Defendant is a mutual insurance company organized under the laws of the State of New York and authorized to transact business in Pennsylvania. On or about October 1, 1930, defendant company, upon application of the pastor and treasurer of the said unincorporated association, issued a policy of insurance against fire, covering the church, rectory and other buildings and their contents, for a period of five years, a premium of $545 being paid thereon. At the same time a similar policy, covering the parish school, was issued and the sum of $180 paid as premium. The policies were standard in form and each contained the following clause:
"This policy shall be cancelled at any time at the request of the insured, by giving ten days' notice in writing to the secretary, or by the company by giving five days' written notice of cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the unearned portion or such part of the paid premium as may be due the insured after deducting therefrom his pro rata share of the debts of the company, shall be returned on surrender of this policy, this company retaining the customary short rate; except that when this policy is cancelled on the initiative of this company, it shall retain only the pro rata premium."
On October 1, 1933, the insured surrendered the said policies to the defendant company, accompanied by the following notice:
"Saint Bernard's Church, Indiana, Pa., September 7, 1933.
New York Central Mutual Fire Insurance Company, Edmeston, New York.
Subject: St. Bernard's Church, Indiana, Pa.
Gentlemen:
I am returning to you the following policies, issued by your company on the above parish, for cancellation as of this date:
No. 211021 $15,000 Premium $180 Return Premium $70.20.
No. 218046 $54,500 Premium $545.40 Return Premium $267.25.
Please forward remittance covering the return premium directly to me. Instructions have been given by the Insurance Department at Harrisburg, that policies shall be sent to you rather than to your agent and I shall look to you for the return premium in question.
Very truly yours, Saint Bernard's Church, (Sgd.) James Brady, Pastor."
The policies and notice were received by the insurer and have been retained by it ever since. The insurer, however, denying the authority of the pastor to cancel, refused to do so and refused to return any portion of premiums to him. This suit was accordingly brought and the affidavit of defense is a somewhat remarkable pleading. Plaintiffs have taken a rule for judgment for want of a sufficient affidavit of defense.
Defendant admits substantially all the averments of the statement of claim, but avers that the plaintiffs who professed to act for the unincorporated association are without authority to maintain the suit; that they have no knowledge of the matters declared upon; that the pastor was without power to cancel the policy and that therefore there was, in fact, no cancellation; that the purported cancellation was directed by the Roman Catholic Bishop of the Diocese of Pittsburgh, in order that the insurance might be placed through an organization known as the Catholic Insurance Commission and finally, that the pastor and plaintiffs are acting under the instructions and orders of said bishop who is thereby exceeding his authority, which, defendant claims, is limited to matters of religion.
There is plainly no merit to the defense. It is fundamental that an unincorporated association, consisting of many members, may sue by representation: Liederkranz Singing Society v. Germania TurnVerein, 163 Pa. 265, 268; Klein v. Rand, 35 Super. 263, 267. That the pastor acted without authority in cancelling the policy, is likewise an untenable position in the light of the fact that the association has ratified his action in the most positive way possible, viz., by bringing suit pursuant thereto: Bank of America v. Sunseri, 311 Pa. 114. None of the members are objecting and the benefit of the action will accrue to the association.
The contention that the Roman Catholic Bishop of the Diocese of Pittsburgh has arbitrarily directed the cancellation is in no sense a defense to this action. It is inconceivable as a matter of defense in an action of law.
We are, accordingly, of opinion that the affidavit of defense is wholly without merit. The insured had an absolute right to cancel the policy on ten days' notice. No reason therefore was needed. It did so. By the contract, the company then became liable for the unearned portion of the premiums paid, less a prorated share of the company's debts. The plaintiffs declare this to be $337.45. Defendant does not deny the accuracy of these figures. No purpose would be served by leave to amend; the rule should be made absolute.
Rule for judgment for want of a sufficient affidavit of defense made absolute and judgment entered for plaintiff. Defendant appealed.
Error assigned, among others, was judgment.
B.A. Sciotto, and with him Paul Robinson and S.V. Albo, for appellant.
Francis A. Wolf, for appellees.
Argued November 21, 1934.
Judgment was entered in the court below against the defendant for want of a sufficient affidavit of defense in an action of assumpsit. The action was brought by certain members of St. Bernard's Roman Catholic Church, an unincorporated association, on its behalf, to recover the return or unearned premium due the church on the cancellation of a fire insurance policy covering the church property which had been issued by the defendant insurance company.
The action was not brought to recover a loss under the policy, but for the return or unearned premium payable on its cancellation. It was not necessary to append a copy of the policy to the plaintiff's statement.
The opinion of Judge PATTERSON of the court below clearly and concisely states the facts involved and the law applicable to the case.
The judgment is affirmed on that opinion.