Bond v. National Fire Ins. Co. of Hartford, Conn.
| Decision Date | 15 November 1918 |
| Docket Number | 3436. |
| Citation | 97 S.E. 692,83 W.Va. 105 |
| Parties | BOND v. NATIONAL FIRE INS. CO. OF HARTFORD, CONN. |
| Court | West Virginia Supreme Court |
Submitted October 15, 1918.
Rehearing Denied Jan. 8, 1919.
Syllabus by the Court.
An agreement between the insured and a general soliciting agent of fire insurance companies, that the latter will keep the property of the former insured up to a certain per cent. of its value, and renew the same when necessary, will not avoid a policy procured by such agent without the knowledge of the insured. Such an undertaking on the part of a general insurance agent is not incompatible with his duty to his principal.
A condition attached to and forming a part of a fire insurance policy, providing that the insurer shall be liable for no greater proportion of any loss than the amount insured bears to 80 per cent. of the actual cash value of the property covered by the policy at the time of the loss, "nor for more than the proportion which this policy bears to the total insurance thereon," impliedly authorizes the insured to take other insurance on the property, not exceeding in all 80 per cent. of its cash value, notwithstanding a printed condition in the policy avoiding it in the event other insurance is taken without the insurer's written consent added to or indorsed on the policy.
A fire insurance policy covering different classes of property separately valued, containing a condition or warranty relating to one class of property only, and not affecting the risk as to another, is a divisible contract, and is not avoided in its entirety because of a breach of such condition or warranty, notwithstanding a stipulation in the policy that it shall become void in toto upon a breach by the insured of any one of its conditions.
A fire insurance policy covering a sawmill and machinery and manufactured lumber stacked on the millyard, separately valued, containing a condition avoiding the entire policy, if the insured shall cease to operate the mill for more than 30 consecutive days, is rendered void, only so far as it affects the insurance on the mill, by failure to operate for a period longer than that specified without the written consent of the insurer.
A judgment rendered upon a demurrer to evidence, where no motion was made in the court below to set aside the verdict will not be reversed by this court for excessiveness of the jury's verdict.
Error to Circuit Court, Tucker County.
Action by W. C. Bond against the National Fire Insurance Company of Hartford, Conn. Judgment for plaintiff, and defendant brings error. Affirmed.
A. M Cunningham, A. R. Stallings, and W. K. Pritt, all of Parsons for plaintiff in error.
C. O. Strieby, of Elkins, and D. E. Cuppett, of Thomas, for defendant in error.
Plaintiff recovered judgment in an action on a fire insurance policy covering a sawmill and lumber stacked on the millyard, and defendant has brought the case to this court, assigning numerous errors committed by the trial court. These alleged errors are comprehended in the three principal propositions on which defendant relies, viz.: (1) That W. E. Crooks acted as agent for both plaintiff and defendant in writing the policy, which was an inconsistent relation, and gave defendant the right to avoid the policy; (2) that plaintiff violated the promissory warranty against procuring other insurance on the property without the consent of the insurer; and (3) that he also violated the promissory warranty against suspension of the operation of the mill for more that 30 consecutive days without written permission.
The case was before this court on a former writ of error and is reported in 77 W.Va. 736, 88 S.E. 389. On the second trial the case was heard on a demurrer to plaintiff's evidence, defendant having offered no evidence whatever. The court overruled the demurrer to the evidence, and entered judgment upon the conditional verdict.
As to defendant's first proposition, it appears from the testimony of the insured and W. E. Crooks, the insurance agent, that the former intrusted the latter with the business of placing insurance on his property, not to exceed 80 per cent. of its cash value, and of renewing the same when necessary, without designating any particular insurance company to take the risk. Mr. Crooks was a general agent representing a number of insurance companies, and did endeavor to keep plaintiff's property insured to the amount of 80 per cent. of its cash value. At the time of the loss the property was covered by a number of policies, three of which were written by defendant company, and others by different other companies. Defendant contends that this agreement or arrangement constituted Crooks agent for both parties to the contract, and rendered the policy voidable, at its election, for reasons of public policy. It is a very common practice for the insured to intrust to a general insurance agent the matter of keeping insurance on his property to a stipulated amount, and also, in case the agent represents more than one company, with the power of selecting the insurance company to take the risk. Mr. Crooks swears he frequently went to the lumber yard and made careful estimates of the amount of lumber stacked thereon at the time of writing and re-writing the insurance; that he would make actual measurements of some piles of lumber, and then count the number of piles, and by that means arrive at the quantity of lumber on the yard, and that he also examined the scaler's book. He thus ascertained the quantity of lumber about as nearly as it could be done without actual measurement of it, and says he aimed to keep the amount of insurance within the limit of 80 per cent. of its value. His duty to the insurer necessarily required him to estimate the value of the property before writing the contract. Crooks was not in any way interested in the property, nor was he a general agent of the insured for any purpose, nor did he receive any compensation from him for procuring the insurance. Apparently his only interest was to procure insurance for the companies by whom he was employed to solicit insurance, and his undertaking with the assured to keep his property insured was not incompatible with his duty to his principal, the insurer. It is true that an insurance agent, having such power given him by the insured, may properly be regarded for some purposes as the agent of the assured, such, for instance, as waiving notice of cancellation of the policy, as was held in Hollywood Lumber & Coal Co. v. Dubuque Fire & Marine Insurance Co., 80 W.Va. 604, 92 S.E. 858. See, also, Pauley v. Sun Insurance Office, 79 W.Va. 187, 90 S.E. 552. But he does not become the agent of the insured for the purpose of making the contract. The general rule forbidding an agent from acting for two principals in their mutual transactions is not applicable here, for the reason that there is nothing in the agent's obligation to the insured inconsistent with the performance of his full duty to the insurer for whom he acts as soliciting agent. There are no antagonistic interests to be guarded. 2 Joyce on Insurance (2d Ed.) § 662; 2 Clement on Fire Insurance, rule 93, page 504; 3 Cooley's Insurance Briefs, 2531; 1 Same, 848; Dibble v. Northern Assurance Co., 70 Mich. 1, 37 N.W. 704, 14 Am.St.Rep. 470; Warren v. Franklin Insurance Co., 161 Iowa 440, 143 N.W. 554; Pence v. Jamison, 80 W.Va. 761, 94 S.E. 383; Hamm Realty Co. v. New Hampshire Fire Insurance Co., 80 Minn. 139, 83 N.W. 41; and Todd v. German-American Insurance Co., 2 Ga.App. 789, 59 S.E. 94.
Defendant's second proposition, that plaintiff violated the promissory warranty in the policy by procuring other insurance upon the property, is fully answered by the terms of the reduced rate average clause in the rider attached to, and made a part of, the policy. That provision is:
This provision gives implied authority to take other insurance, provided the whole amount taken does not exceed 80 per cent. of the actual cash value of the property insured; otherwise this provision of the policy would be meaningless. It is an express stipulation regarding the apportionment of loss in case other insurance is taken, and necessarily implies the right to take other insurance up to the prescribed limit, provided the entire amount does not exceed it. Teter v. Franklin Insurance Co., 74 W.Va. 344, 82 S.E. 40; Pool v. Milwaukee Mechanics' Insurance Co., 91 Wis. 530, 65 N.W. 54, 51 Am.St.Rep. 919; Strauss v. Phenix Insurance Co., 9 Colo. App.
386, 48 P. 822. In Pool v. Milwaukee Mechanics' Insurance Co. supra, the...
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