The plaintiff, Thomas E. Bressi, seeks to recover from the London Assurance Corporation, in an action of assumpsit, the sum of $1650, which is the amount of the insurance on a four-passenger automobile, known as a Haynes, under a policy dated May 9, 1921. The insurance was against loss by theft, and it appears from the pleadings that the automobile was stolen Feb. 4, 1922. Demand for payment, under the policy, was made, and is admitted by the defendant. The defendant has arbitrarily taken the position, notwithstanding the fact that the policy of insurance was for the sum of $1650, that at the time of the loss of plaintiff’s automobile, it was worth less than $400. This was without inspection.
In our opinion, there is no foundation in fact, under the contract of insurance, which gives the insurer in this case the right to arbitrarily fix the value of the stolen automobile. There is no evidence as to actual cash value at the time of the theft. We are also of opinion that we need not go further into the case at bar than to refer to the opinion of President Judge Martin, of Court of Common Pleas No. 5, reported in the Legal Intelligencer March 3, 1922 [1 D. & C. 181], in which there was a rule taken for judgment for want of a sufficient affidavit of defence, as in this case, and the rule was made absolute.
We concur in the opinion of Court of Common Pleas No. 5, the facts under the policy being alike, and, therefore, the rule for judgment for want of a sufficient affidavit of defence is made absolute.