Black v. Atlanta Home Ins. Co.
| Decision Date | 30 May 1908 |
| Citation | 61 S.E. 672,148 N.C. 169 |
| Parties | BLACK v. ATLANTA HOME INS. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Peebles, Judge.
Action by W. P. Black against the Atlanta Home Insurance Company. Judgment for defendant, and plaintiff appeals. Affirmed.
Defendant insurance company through its agents at Asheville, N. C., on December 29, 1905, issued to plaintiff its policy of insurance against loss or damage by fire to the amount of $1,900 on certain property fully described therein. The policy was of the standard form, set out in full in Revisal 1905,§§ 4759-4760, and contained the following provisions "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole, or in part, by this policy." The policy contains this further clause: "This policy is made and accepted to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached." All of which is contained in the "standard policy" prescribed in the statute. On January 4, 1906, another policy was issued by the German Fire Insurance Company on said property for $500. On January 9 1906, the property covered by the policies was destroyed by fire. It was conceded that no consent by defendant was indorsed on the policy of December 29, 1905, to the issuance of the policy of January 4, 1906. The property as found by the jury, was worth $3,274. The following, among other issues, was submitted to the jury: "Was there a waiver by the defendant of the condition in the policy as to the additional insurance issued by the German Insurance Company?" Plaintiff introduced parol evidence for the purpose of showing a waiver by defendant of the condition in regard to the additional insurance. His honor, upon the conclusion of the evidence, charged the jury that there was no evidence that the defendant waived the provision in the policy in regard to taking out additional insurance in the German Insurance Company, and instructed them to answer the issue "No." Plaintiff excepted. Judgment was rendered for defendant, and plaintiff duly excepted and appealed.
Zebulon Weaver and H. B. Carter, for appellant.
Tillett & Guthrie, for appellee.
The principal question presented is whether parol evidence is admissible to show a waiver of the condition avoiding the policy by reason of taking the additional insurance January 4, 1906. The condition expressed in the policy that other insurance taken upon the policy without the assent of the insurer would render the policy void is valid, and, unless waived, will be enforced. Sugg v. Insurance Co., 98 N.C. 143, 3 S.E. 732. The language of the contract is explicit and incapable of misunderstanding, leaving no room for construction. Assuming for the purpose of the argument that the agent who issued the policy, comes within the definition of a general agent, with power to bind the company in respect to the policy issued by him, as held in Grubbs v. Insurance Co., 108 N.C. 472, 13 S.E. 236, 23 Am. St Rep. 62, the plaintiff is confronted with the express provision in the face of the policy, the form of which is prescribed by the statute, that no officer, agent, or representative of the company shall have power to waive any provision or condition, except such as by the terms of the agreement is "indorsed hereon or added hereto," and as to these no officer, agent, etc., shall have such power, or deemed or be held to have waived such condition, unless the waiver, if any, shall be "written upon or attached hereto"; nor shall any privilege or permission exist or be claimed by the insured, unless so written or attached. There can be no controversy regarding the meaning of these words. They are inserted in the policy, not by the company or by the plaintiff, but by the statute. To fail to give them force and effect is to nullify the statute. They are not intended to restrict the powers, express or implied, of general or local agents, but to prescribe an invariable rule of evidence, by which their conduct must be proven to bind the company. Prior to the enactment of the statute much controversy arose as to the reasonableness of conditions or provisions inserted in policies. In many cases, by reason of the obscure language, manner, and place of insertion and unfairness to the insured, the courts held them unreasonable and invalid. The conduct and language of agents, together with the extent of their power, rendered the rights and duties of the company and the insured uncertain and insecure. The courts, for the prevention of fraud and injustice, construed such provisions most strongly against the insured, and to prevent forfeitures were industrious to find waivers in the conduct and language of agents. This is apparent from the decided cases in our own and the reports of other courts. To avoid these controversies, frequently resulting in long and to the insured ruinous litigation, the Legislatures of this and other states enacted the "standard policy" and forbade the use of any other. The Legislature of this state in 1899 enacted a statute codifying the insurance law and adopting the "standard policy," prescribing the size of type in which it shall be printed, etc. For issuing any other form of policy the company and its agents are made indictable. Sections 4762-4833, Revisal 1905. The courts of other states in which this form of policy is prescribed have uniformly held that its terms and provisions are binding upon the company and the insured.
The question presented upon this appeal was decided in Quinlan v. Insurance Co., 133 N.Y. 356, 31 N.E. 31 28 Am. St. Rep. 645, Andrews, J., saying: "No principle is better settled in the law, nor is there any founded on more obvious justice, than that if a person, dealing with an agent, knows that he is acting under a prescribed and limited authority, and his act is outside of and transcends the authority conferred, the principal is not bound, and it is immaterial whether the agent is a general or special one, because a principal may limit the authority of one as well as the other." Referring to the facts in that case, he says: "The limitations upon the authority of K. were written on the face of the policy," copying the language found in the standard policy. Again he says: "When a policy permits an agent to exercise a specified authority, but prescribes that the company shall not be bound unless the execution of the power shall be evidenced by a written indorsement on the policy, the condition is of the essence of the authority, and the consent or act of the agent not so indorsed is void." This is a manifestly correct statement of the law. The learned justice proceeds to point out the evils which the enactment of the standard policy was intended to avoid, saying: "The act providing for a uniform policy known as the standard policy, and which makes its use compulsory upon insurance companies, marks a most important and useful advance in legislation relating to contracts of insurance." Moore v. H. F. Ins. Co., 141 N.Y. 219, 36 N.E. 191. In Bourgeois v. National Ins. Co., 86 Wis. 606, 57 N.W. 347, Winslow, J., referring to the enactment requiring the use of the standard policy, says: ...
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