Foreman v. German Alliance Ins. Ass'n

• Decision Date: 14 December 1905
• Citation: 104 Va. 694,52 S.E. 337
• Parties: FOREMAN . v. GERMAN ALLIANCE INS. ASS'N.
• Court: Virginia Supreme Court

52 S.E. 337

104 Va. 694

FOREMAN .

v.GERMAN ALLIANCE INS. ASS'N.

Supreme Court of Appeals of Virginia.

Dec. 14, 1905.

1. Evidence—Acts of Agent—Existence of Agency.

Where M. & Co., being both agents for defendant insurance company and for a building and loan association, paid certain premiums for the loan association accruing on policies issued by defendant on property in which the loan association had an interest, a receipt given by M. & Co. to the loan association for the aggregate of eight insurance premiums, one of which was the premium on the policy sued on, not appearing to have been given by them as agents of defendant insurance company, was not admissible as against it

2. Insurance — Vacancy — Forfeiture — Knowledge of Agents.

Where M. & Co. were both the agents of defendant insurance company and of a building and loan association, for whose benefit certain property was insured by them, knowledge of the vacancy of the property acquired by M. & Co. as agents of the loan association, and not while attending to the affairs of the insurance company, and not shown to have been present in the minds of M. & Co. at the time they did any act with reference to the insurance as agents of the defendant, was not notice to defendant sufficient to constitute a waiver of a forfeiture by reason of such vacancy.

Error to Law and Chancery Court of City of Norfolk.

Action by C. B. Foreman against the German Alliance Insurance Association. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

Robt. W. Mallet, for appellant.

White, Tunstall & Thorn, for appellee.

BUCHANAN, J. This was an action of assumpsit, instituted against the German Alliance Insurance Association on a fire insurance policy by C. B. Foreman, for the benefit of the Prudential Building & Loan Association.

The defense of the insurance company was that the premises, after the policy had been issued, became and remained vacant, in violation of that condition of the policy which declared that the entire policy shall be void if the building therein described be or become vacant or unoccupied for 10 days.

The plaintiff admitted such vacancy, but claimed that the forfeiture resulting therefrom had been waived by the insurance company. Upon the trial of the cause, the defendant, without introducing any evidence, demurred to the plaintiff's evidence. The court sustained the demurrer, and gave judgment for the defendant. To that judgment this writ of error was awarded.

It appears that the policy, which was for one year, was issued on or about the 8th of May, 1902, through Albert Morris & Co., the general agents of the insurance company in the city of Norfolk. A like policy had been taken out by the insured for the previous year; but upon his informing the build ing and loan association, which had a mortgage upon the property, that he could not pay the premium upon a policy for another year, that association took out the policy sued on in his name, with a provision that the loss, if any, should be payable to the building and loan association as its interest might appear. Albert Morris & Co. were also agents in that city for the Prudential Building & Loan Association, and were authorized to pay the premiums on policies of insurance in which it was interested, when such premiums fell due and were not paid, and could not be collected by them from the insured. The premium on the policy sued on not having been paid by the insured, Albert Morris & Co. paid it to the insurance company on the 5th of June.

On the 5th of July the insured vacated the premises, and between that time and the 10th of that month gave the key of the house to Albert Morris & Co., as the agents of the Prudential Building & Loan Association, informing them that he could not keep up the payments due the building and loan association on its loan secured upon the property. Albert Morris & Co. about two weeks after that, notified him that if he did not pay the premium they would have to collect it from the building and loan association. The insured did not pay them, nor did he know at that time that they had paid the premium to the insurance company under their agreement with the building and loan association. Between that time and the following October that association settled with or repaid Albert Morris & Co. the amount which they had advanced in paying the premium on the policy.

In November of that year the buildings on the premises were destroyed by fire. When the insurance company was notified of the loss, it at once denied its liability on the ground that the vacancy clause in the policy had been violated.

During the trial the plaintiff offered to read to the jury a receipt, dated in October, 1902, given to the building and loan association by Albert Morris & Co., for $83, the aggregate...