Dupree v. The Va. Home Ins. Co.

• Decision Date: 31 October 1885
• Citation: 93 N.C. 237
• Court: North Carolina Supreme Court
• Parties: SARAH A. DUPREE v. THE VIRGINIA HOME INSURANCE COMPANY.

93 N.C. 237

SARAH A. DUPREE

v.THE VIRGINIA HOME INSURANCE COMPANY.

Supreme Court of North Carolina.

October Term, 1885.

This was a PETITION TO REHEAR, by the defendant, filed at the October Term, 1885, of the Supreme Court.

The case is reported in 92 N. C., 417.

The facts appear in the opinion.

Messrs. Armistead Jones and A. M. Lewis & Son, for the plaintiff .

Messrs. D. G. Fowle and J. W. Hinsdale, for the defendant.

SMITH, C. J.

The argument upon the rehearing of the errors assigned, protracted over the entire period allowed by the rule, has been little more than the reproduction of that made upon the first hearing, which was full and exhaustive upon the numerous exceptions contained in the record, both orally and in the brief.With this aid, the case was then in all its details, carefully considered and decided.Our convictions produced by that discussion, and our examination of the authorities, as embodied in the opinion then formed and delivered, remain unchanged.We do not feel called upon to go over the same ground a second time to sustain the conclusions then reached, but shall, notwithstanding they have been called in question and assailed with earnest confidence by counsel, leave their correctness to the vindication furnished in the opinion.To do this in the absence of any important overlooked case, adjudged in the Courts or contained in any recognized elementary work, or any shown misconception of the facts, at the instance of dissatisfied counsel, against whose client the decision is made, and whose zeal does not admit of the calm, dispassionate consideration that belongs to the judicial mind, would be to invite a needless revision of the rulings of the Court, and impair confidence in them.Nor are such contemplated in the rule, that, under limitations, allows an application for a rehearing of a decided cause.As was said with great force by the late eminent Chief Justice, delivering the opinion in Watson v. Dodd,72 N. C., 240, and reiterated in subsequent cases: “No case ought to be reheard upon petition to rehear, unless it was decided hastily, and some material point was overlooked, or some direct authority was not called to the attention of the Court.”Hicks v. Skinner,72 N. C., 1;Devereux v. Devereux,81 N. C., 12;Haywood v. Daves, Ibid., 8.

While we are ready and willing to correct any error which may have been committed, and will do so when it is pointed out and made to appear, it is not in the contemplation or scope of the rule, to permit an adjudged case to be reviewed, and the rulings made therein controverted by the same course of reasoning and the reproduction of the same authorities, which were relied on in the former argument, and then, with due and careful deliberation, considered and disposed of.

We shall not, therefore, go over the entire ground covered by the present argument, and re-examine, as was done before, the nineteen enumerated errors set out in the defendant's petition, many of which present the same substantial proposition in modified forms, but we will confine ourselves to the two most prominent, in what we have now to say.These objections are, first, to the admission in evidence of the report of the agent who made the examination, upon which the first insurance was effected; and second, to the refusal to allow the defendant to introduce witnesses to falsify the statement of the witness Dupree, elicited upon his cross-examination by the defendant.

1st.The report of the agent to the general agent of both insurance companies, Cameron, Hay & Co., sent out to inspect the premises.

Among the defences set up in opposition to the plaintiff's demand of indemnity for the loss occasioned by the fire, is an averment that the execution of the policy was superinduced by the false and fraudulent representation of the value of the property, made in the plaintiff's application for insurance, which, entering into, vitiates and avoid the contract.In meeting this imputation, the plaintiff was allowed to show that an employè, at the instance of the general agents, Cameron, Hay & Co., had made an examination and report of the premises the year before, upon which an insurance was effected in another company, they being agents of both principals, and that with this information, they issued the policy upon which the present action is founded.The agency firm consisted of three members, one of whom, particularly conversant with the transaction, retired before the present policy was issued.It was certainly competent to show this source of information possessed by the agency firm, in regard to the property included in both policies, when they issued the last, and as tending to rebut the charge that it was solely brought about by the fraudulent statements contained in the plaintiff's application.This agency may be understood, at least the evidence tending in this direction was proper to go before the jury, to have acted alike upon this information, as upon that furnished by the plaintiff, when each of the policies was issued.

We were referred to the case known as The Distilled Spirits,11 Wall., 356, where it is supposed a contrary doctrine is maintained.So far from this, in our opinion, it sustains our view.Mr. Justice BRADLEY then says, “that in England, the doctrine now seems to be established, if the agent at the time of effecting a purchase, has knowledge of any prior lien, trust or fraud, affecting the property, no matter where he acquired such knowledge, his principal is affected thereby.”He then adds: “On the whole, however, we think that the rule as finally settled by the English Courts, with the qualification above mentioned,”(referring to information confidentially acquired, and which public policy does not permit to be disclosed)“is the true one and is deduced from the best consideration of the reason on which it is founded.”

We have not undertaken to give any specific effect to the evidence, but only to declare that it was proper to be heard by the jury.

But it was urged that the trial Judge, in his charge, gave an unwarranted force to the evidence, in telling the jury that “the witness may be considered as determining the value of the other articles insured, but not as to the value of the merchandise”--which had not passed under his inspection.

This literal rendering of the words of the Judge, does not, most assuredly, convey his meaning as he must have been understood.

He evidently intended to say, and this is in harmony with what precedes, that the jury might consider this evidence in determining the value of that property.In the beginning of the sentence of which the words quoted are the conclusion, his words are: “In determining the value of the property insured, the jury may consider and give such weight as they deem proper, to the testimony offered, to show that the firm of Cameron, Hay & Co. were, during the years 1878 and 1879, agents both of the defendant company and the Virginia Fire and Marine Insurance Company that issued the policy offered in evidence, in July, 1878, and that an agent, acting under the direction of said firm, inspected and estimated the value of the storehouse and other articles insured in the policy sued on, at the prices set forth in the policy issued in 1879, and made out the application,” &c.This language clearly shows that the Judge meant to leave, and was so understood, the force and effect of the evidence to the...