Opinion, per MERRELL, J.

opinion, "that after the issuance of said policy, and before the time of the fire, the real estate on which the barn was situated was incumbered by a mortgage." The plaintiff replied, admitting the encumbrance, but alleging that he had notified the company of the execution of the mortgage and that the company thereafter accepted premiums. There was apparently evidence that the company's agents were informed of the subsequent encumbrance, but none to indicate that they had communicated the same to the company. It was therefore held that a verdict should have been directed for the company.

There is nothing in the report of the Titus case to indicate that there was any breach of the stipulations of the policy at its inception, that is, at the time the policy was issued, much less that the company's agents had knowledge of such breach. When the insured received the policy and paid the first premium he obtained a policy which actually insured the property in question. Moreover, upon delivering the policy and receiving the initial premium, the functions of the company's agent ceased, so far as their apparent scope was concerned. If further power was to be attributed to the agent, it could only be found in some express authorization by the company in the policy or elsewhere. The terms of the policy itself negatived the existence of further powers in the agent. Hence notice by the insured to the agent of any subsequent encumbrance placed upon the property insured could not be imputed to the company, for the

Opinion, per MERRELL, J.

obvious reason that the agent's knowledge was obtained at a time when he had ceased to have any duty to perform with respect to the property or insurance in question, and no longer possessed power real or apparent with respect thereto.

It must therefore be seen that the Titus case does not control the decision of the case at bar, and is in no sense in conflict with the principles of law herein declared.

The third defense of the insurance company presents matter independent of the issues hitherto discussed. The policy provided that the same "shall be void if *

*

any change

* * *

take

place in the interest, title, or possession of the subject of insurance whether by legal proc

*

*

, or otherwise."

For some time prior to the fire plaintiff was in default for rents and taxes under his lease, which reserved to the lessors a right of re-entry in such event. At the time of the fire, an action was pending between the lessors and plaintiff as lessee, wherein the former sought a decree of forfeiture, recovery of rent, and the appointment of a receiver to collect rentals pending the litigation. With the consent of the present plaintiff a receiver had been appointed, and was in technical charge of the property. However, Foster continued to live in the property without paying rent to the receiver; he, Foster, in fact, collected rents from the tenants of the building and turned them over to the receiver. Judgment in the case decreeing forfeiture and awarding to the lessors a writ of pos

Opinion, per MERRELL, J.

session was not rendered until some months after the fire.

We are of the opinion that neither the existence of grounds of forfeiture at the time of the fire, nor the incumbency at that time of a receiver to sequester rentals, constituted a change in the "interest, title, or possession" of the insured, nor a termination of his insurable interest.

The common stipulation in policies of fire insurance, here set up in the third defense, has quite generally been construed as having reference to the increase of hazard which may result from an actual change in title or possession, neither of which had occurred in the present instance. This was the view expressed in Bronson v. Insurance Co., 64 W. Va., 494, on other points strongly relied on by defendant, where, at page 496, it is said: "It is the actual change of possession *** that violates the policy." In Georgia Home Ins. Co. v. Bartlett, Trustee, 91 Va., 305, the appointment of a receiver to take charge of the property and collect rentals was held not to void the policy under the precise clause here in question. It was there said, at page 309: "The test to be applied in each case is whether the fact of possession has been changed."

To the same effect are Walradt v. Phoenix Ins. Co., 136 N. Y., 375, and Marcello v. Concordia Fire Ins. Co., 234 Pa. St., 31.

Reason and justice support this doctrine, and the court of appeals and the trial court did not err in finding, in effect, that the third defense was not sustained by the proof.

Statement of the Case.

The judgment herein of the court of appeals is therefore reversed and that of the court of common pleas affirmed.

Judgment of the court of appeals reversed and that of the common pleas affirmed.

MATTHIAS, JOHNSON and ROBINSON, JJ., concur. WANAMAKER, J., concurs in the judgment.

Negligence

PENNSYLVANIA Co. v. HART.

Last clear chance-Charge to jury- Attempt to withdraw issue-Jury instructed to disregard allegations in pleading.

1. It is error for the trial court in his charge to the jury to charge the doctrine of "last clear chance" where there is no evidence tending to prove a state of facts bringing the case within the rule.

2. A withdrawal from the consideration of the jury of the portion of the "statement of claim" charging negligence within the rule of the "last clear chance" does not automatically withdraw instructions theretofore given to the jury upon that subject.

(No. 16378-Decided April 6, 1920.)

CERTIFIED by the Court of Appeals of Cuyahoga county.

On the 22d day of September, 1914, the defendant in error, Michael Hart, while an employe of one Fred Preston, and while riding in an automobile truck owned and driven by Preston, over

Opinion, per ROBINSON, J.

a highway crossing of the railroad of the Pennsylvania Company, was struck by a locomotive train of plaintiff in error and injured. Suit was filed in the municipal court of the city of Cleveland and judgment recovered, which judgment was affirmed by the court of appeals. The cause is here upon certification of the record.

Messrs. Squire, Sanders & Dempsey and Mr. Ellis R. Diehm, for plaintiff in error.

Messrs. Gaughan & Collins, for defendant in

error.

ROBINSON, J. While there are numerous assignments of error urged by plaintiff in error, in view of the conclusion the court has reached but one of them will be considered.

The fifth allegation of negligence of the fifth amended statement of claim reads as follows: "That the defendant company did not stop its said train in time to avoid hitting said automobile truck when the crew in charge of said train saw the automobile truck on said railroad crossing in a helpless and dangerous position, in time to stop said train and avoid collision, and that said defendant had plenty of opportunity to have stopped said train or to have slowed down said train to avoid hitting said automobile truck, but failed and neglected to do so." This attempts to and does charge negligence on the part of the plaintiff in error squarely within the rule of the doctrine of "last clear chance."