Folb v. Phoenix Ins. Co.

• Decision Date: 12 November 1891
• Citation: 13 S.E. 798,109 N.C. 568
• Parties: Folb et al. v. Phoenix Ins. Co.
• Court: North Carolina Supreme Court

13 S.E. 798

109 N.C. 568

Folb et al. v. Phoenix Ins. Co.

Supreme Court of North Carolina

November 12, 1891

Appeal from superior court, Cumberland county; R. F. Armfield Judge.

Action by M. Folb and Louis Folb against the Phoenix Insurance Company on a policy of fire insurance. Verdict and judgment for plaintiffs. Defendant appeals. Affirmed.

Statement by the Court. The plaintiffs brought this action to recover the sum of $1,500, which the defendant, by its policy of insurance, agreed and promised to pay them in case of the loss of their goods therein specified by fire, in the contingency and as therein provided and stipulated. The policy contained, among others, a clause in these words "Or if the assured shall have or shall hereafter make any other insurance (whether void or not) on the property herein specified, or any part thereof, without the consent of the company written hereon, then and in every such case this policy is void." In the answer the defendant alleged as a defense, among other things, "that after the issuing of the policy of insurance set out in the complaint the plaintiffs made other insurance on the property specified without the consent of the defendant written upon the said policy, and in violation of its express terms, and thereby rendered said policy void." On the trial the defendant introduced a witness, who testified in its behalf as follows "I am an insurance agent. As such, I wrote a policy for plaintiffs on the goods destroyed and the subject of this suit in the Continental Fire Insurance Company, dated November 8, 1889." Witness further testified that he tendered this policy to the plaintiffs both before and after the fire which consumed the goods, and demanded the payment of the first premium specified in said policy; that the plaintiffs promised to pay, but did not do so, and witness never delivered this policy to plaintiffs, and that, after these tenders, witness received a telegram from his company instructing him not to deliver this policy to plaintiffs. Defendant then offered to prove by that witness that the books of his company, which he had with him in court, showed that this policy had been regularly issued, and a record made on said book. Upon objection by the plaintiffs' counsel this evidence was excluded by the court, and the defendant excepted. Defendant then offered to prove that it was the custom of insurance companies to write policies and hold them for the convenience of the assured until the premiums were paid. On objection of plaintiffs' counsel this was excluded, and defendant excepted. Defendant then offered to prove that after the fire which destroyed the goods the plaintiffs demanded of this company (the Continental) the amount of this last policy, to cover the loss. Upon objection by plaintiffs' counsel, the testimony was excluded by the court, and the defendant excepted. This was all the evidence in the case tending to show that plaintiffs had taken out other insurance on the property in violation of the terms of the policy sued on. His honor submitted to the jury the first issue upon the evidence as to the value of the goods, with...