Bays v. Farmers' Mut. Fire Ass'n Of West Va., 7670.

• Decision Date: 10 October 1933
• Docket Number: No. 7670.,7670.
• Citation: 171 S.E. 253
• Court: West Virginia Supreme Court
• Parties: BAYS. v. FARMERS' MUTUAL FIRE ASS'N OF WEST VIRGINIA.

171 S.E. 253

BAYS.

v.FARMERS' MUTUAL FIRE ASS'N OF WEST VIRGINIA.

No. 7670.

Supreme Court of Appeals of West Virginia.

Oct. 10, 1933.

Syllabus by the Court.

If the facts regarding the risk are correctly stated to the agent of an insurance company, but erroneously inserted by him in the application, the company is chargeable with his error or mistake, whether the application is attached to the policy as a part thereof or not.

Error to Circuit Court, Mason County.

Action by Smaria Bays against the Farmers' Mutual Fire Association of West Virginia. Judgment for plaintiff, and defendant brings error.

Affirmed.

H. H. Rose, of Fairmont, for plaintiff In error.

Robert L. Hogg, of Point Pleasant, for defendant in error.

MAXWELL, President:

From a judgment against it for $1,093.17, the defendant prosecutes writ of error.

The action is for insurance on a barn destroyed by fire. The parties waived a jury and submitted the case to the court on the pleadings and an agreed statement of facts.

The defense is that there are material misrepresentations of fact in the application for the insurance in that the barn was therein represented to be of the size 56 feet by 56 feet and 16 feet to the square, built in 1925 and covered with a metal roof, whereas in fact it was 46 by 56 feet and only 12 feet to the square, rebuilt in 1925 and partly covered with metal roof. This being a material misstatement of fact, the defendant relies upon the following warranty in the application: " * * * And this insurance is based upon the representations as contained in the assured's application of even number herewith, a copy of which application is hereto attached and each and every statement of which is hereby specially made a warranty and a part hereof, and it is agreed, that if any false statements are made in said application this policy shall be void."

It appears from the statement of facts that the plaintiff's husband requested of a soliciting agent of the defendant that the policy in suit be issued; that he gave to the agent a correct description of the barn and was told by the agent that the policy would be mailed to the plaintiff; "that neither the plaintiff nor her agent (husband) at any time knew of the necessity of any formal application and that neither the plaintiff nor her agent at any time signed any such application."

When the policy was received by the plaintiff, there was attached thereto what purported to be a copy of an application on one of the defendant's printed forms. The misdescription of the barn was therein contained. The writing in the blank spaces had been done with a typewriter, and the name of the plaintiff had been written at the end of the form in the same manner. The policy was issued October 14, 1929, and was at once mailed to and received by the plaintiff. The barn was totally destroyed by fire September 20, 1931. The defendant invokes the following provision of our statute relating to farmers' mutual fire insurance companies:

* * * the insurance contracts of all such companies shall be made to conform to the provisions of this article and shall consist of the policy proper, constitution and by-laws of the company, all indorsements made on or attached to the policy, such parts of the application as are attached to or incorporated in the insurance contract, and any premium note or other policy obligation given by a member, all of which shall be binding on the insured as long as he remains a member or policyholder of the company." Code 1931, 33-5-9. It is urged that this statute expressly eliminates from consideration any matter not appearing in the enumerated papers.

The further position is taken by the defendant that the plaintiff by accepting and retaining the policy without objection to the misstatements contained in the purported copy of warranties thereto attached adopted as her own the said statements and ratified the Same, and that the plaintiff may not be permitted to adduce evidence for the purpose of showing that correct information as to the size, age and roof of the barn was given to the defendant's agent who procured the policy to be" written.

Plaintiff's failure to read the paper attached to the policy and to discover therein the...