Aetna Ins. Co. v. Carpenter

• Decision Date: 28 April 1938
• Citation: 170 Va. 312
• Court: Virginia Supreme Court
• Parties: AETNA INSURANCE COMPANY, A CORPORATION v. L. LOUISE CARPENTER.

Page 312

170 Va. 312

AETNA INSURANCE COMPANY, A CORPORATION v. L. LOUISE CARPENTER.

Supreme Court of Virginia, Richmond.

April 28, 1938.

Present, All the Justices.

1. APPEAL AND ERROR — Evidence — How Considered. — Where a verdict for plaintiff is affirmed by the trial court, the Supreme Court of Appeals must review the evidence in the light most favorable to plaintiff.

2. FIRE INSURANCE — Witnesses — Prior Contradictory Statements — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant company contended that the fire had been started by assured or her agent and introduced statements made out of court by assured's daughter which supported this theory. The daughter was subsequently called as a witness for plaintiff and positively denied the truth of these statements.

Held: That since the daughter had testified in favor of assured, any other statements made by her, at other times, inconsistent with her testimony, were admissible for the purpose of contradicting the witness.

3. FIRE INSURANCE — Burning by Assured or Agent — Evidence — Prior Contradictory Statements of Assured's Daughter — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant company contended that the fire had been started by the assured or her agent, and introduced written statements made out of court by assured's daughter which supported this theory. The daughter was subsequently called as a witness for plaintiff and positively denied the truth of these statements.

Held: That, while the written statements of the daughter affected her credibility, the said statements could not be relied upon as proving the contention of the insurer, in view of the daughter's evidence before the trial court, and the verdict of the jury in plaintiff's favor.

4. FIRE INSURANCE — Burning by Assured or Agent — Evidence — Prior Contradictory Statements of Assured's Daughter — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant company contended that the fire had been started by the assured or her agent, and introduced statements made out of court by assured's daughter which supported this theory. The daughter made five or six statements about the fire, in all of which there was a variance, and when subsequently called as a witness for plaintiff she positively denied the truth of these statements.

Held: That the contradictory statements made by the daughter before the trial supported defendant only to the extent of proving the unreliability and untruthfulness of the daughter, and if her evidence was discredited as wholly unworthy of belief, the Supreme Court of Appeals could not accept any of it as sustaining defendant's contention.

5. FIRE INSURANCE — Burning by Assured or Agent — Evidence — Insufficiency of Circumstantial Evidence — Case at Bar. — In the instant case, an action on a fire insurance policy, defendant company contended that the fire was caused either by or with the connivance of assured, or was deliberately set by her agent. Defendant argued that the finding of certain personal property in a barn on the premises, the fact that assured's children, who were alone in the house at the time of the fire, were found dressed outside five of ten minutes after the fire, an intimation that colored persons were not desired in that particular neighborhood, the fact that a short time before there had been another fire in the house, the signing of a statement by assured that she was willing to forfeit her insurance if it would keep her out of prison, and finally previous statements of assured's daughter, contradictory of the daughter's testimony at the trial, were circumstances definitely and conclusively showing that the fire was of incendiary origin and authorized and inspired by assured. Explanations were offered for all of the circumstances relied on by defendant, and denials of a charge of conspiracy between assured and her daughter were supported by positive evidence.

Held: That the surrounding facts and circumstances sustained a conclusion favorable to assured. There was no positive or persuasive circumstantial evidence that she authorized, directed or consented to the burning of her home, and a fair view of all of the evidence negatived any such conclusion.

6. WORDS AND PHRASES — "Accidental." — The word "accidental" means an unintended or unexpected event occurring without known or assignable cause.

7. FIRE INSURANCE — Burning by Assured or Agent — Instructions — Accidental Burning — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant contended that the insured building was burned either by or with the connivance of assured, or deliberately by her daughter, and objected to an instruction which in effect told the jury that if the building was burned accidentally or unintentionally by the daughter, without the direction of assured, they must find for assured.

Held: That if the fire occurred unexpectedly or without intention, and without any known cause, then its occurrence was "accidental."

8. FIRE INSURANCE — Burning by Assured or Agent — Instructions — Accidental Burning — Burden of Proof of Collusion — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant contended that the insured building was burned either by or with the connivance of assured, or deliberately by her daughter, and objected to an instruction which in effect told the jury that if the building was burned accidentally or unintentionally by the daughter, without the direction of assured, they must find for assured.

Held: That whether the building was accidentally burned by the daughter or by some one else, such burning did not affect the right of assured to recover, nor did it furnish any defense to the insurer, in the absence of fraudulent collusion by assured, the burden of proving which rested on defendant.

9. FIRE INSURANCE — Effect of Destruction of Property by Agent of Assured. — The destruction of property by the agent of the assured does not preclude recovery by the assured, in the absence of fraud, connivance, knowledge, or privity upon the part of the assured.

10. AGENCY — Scope of Authority — Criminal Acts. — A criminal act done by an agent without the knowledge and authority of his principal, and without subsequent ratification, cannot be within the scope of the agent's authority.

11. FIRE INSURANCE — Construction of Policy — Construed Most Strictly against Insurer. — The terms and provisions of a fire insurance policy must be construed most strictly against the insurer.

12. FIRE INSURANCE — Burning by Assured or Agent — Failure of Policy to Except Hazard of Fire Caused by Agent — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant assigned as error the refusal of the trial court to grant an instruction based upon the theory that the incendiary act of assured's agent is imputed to the assured as a fraudulent loss and that it is necessarily excepted from a fire insurance policy, upon the principles of general policy and morals. In the policy in question, which was on the Virginia standard form of fire insurance and had been drawn and prepared by defendant company, there was no mention of the hazard of a fire caused by the wilful or deliberate act of the agent or representative of assured.

Held: That if the insurer desired the benefit of this exception as a hazard not assumed, it should have been included in an express exception, if made with the sanction of the law.

13. FIRE INSURANCE — Avoidance of Policy — Fraudulent Acts of Agent or Third Person. — No fraudulent acts of an agent or of a third person, even though the incendiary be a relative, will void a fire insurance policy unless the assured is implicated in the fraud.

14. FIRE INSURANCE — Burning by Agent — Law of Barratry Not Applicable — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant company advanced the theory that the incendiary act of an agent of the assured is imputed to the assured as a fraudulent loss and that it is necessarily excepted from a fire insurance policy, although no such exception is mentioned in the policy. The contention was made that, by analogy, the maritime rule of barratry, denying the owner of a vessel the right of recovery where the loss occurs by the fraudulent or wilful conduct of the master or captain of the vessel, applied to the burning of a house by an agent of the owner.

Held: That the situation of an agent in control of a house on land is not analogous to the situation of a vessel at sea in command of a master, and hence the law of barratry was not applicable to insurance of property on land.

15. FIRE INSURANCE — Burning by Assured or Agent — Instructions — Statements by Assured's Daughter out of Assured's Presence — Case at Bar. — In the instant case, an action to recover on a fire insurance policy, defendant contended that the insured building was burned either by or with the connivance of assured, or deliberately by her daughter, and objected to an instruction that unless a conspiracy was proven the jury must ignore all statements made by assured's daughter out of the presence of assured, and that a conspiracy could not be proven by the statements alone of assured's daughter out of the presence of assured.

Held: That there was no error in the instruction.

16. INSTRUCTIONS — Appeal and Error — Invited Error — Requesting Instructions in Conflict with Proper Instruction Given for Other Party. — The fact that some instructions asked and given for defendant are in conflict with a proper instruction asked and given for plaintiff is an error invited by defendant, of which he cannot complain in the Supreme Court of Appeals.

17. FIRE INSURANCE — Burning by Assured or Agent — Burden of Proof — Case at Bar. — In the instant case, an action to recover on a fire insurance...