Georgia Home Ins. Co. v. Kinnier's Adm'x

• Decision Date: 25 January 1877
• Citation: 69 Va. 88
• Parties: GEO. HOME INS. CO. v. KINNIER'S adm'x.
• Court: Virginia Supreme Court

69 Va. 88

GEO. HOME INS. CO. v. KINNIER'S adm'x.

Supreme Court of Appeals of Virginia.

January 25, 1877

1. A policy of insurance on a building insures K and his legal representatives. The building having been burned after the death of K, his administratrix may maintain an action on the policy.

2. One of the conditions of the policy is, that it shall be void " if the title of the property is transferred or changed." This does not apply to the descent of the property on the death of the assured to his heirs.

3. A condition in a policy that the entry of a foreclosure of a mortgage shall be deemed an alienation of the property, and avoid the policy, does not involve a sale under the decree of the court in a creditor's bill against the heirs, &amp c., which sale is set aside by the court.

4. One condition of a policy is: Any change within the control of the assured material to the risk shall avoid the policy. The change here referred to is a change in the condition of the property, wrought by the agency of the assured, and not the mere vacation of the house by the assured or its occupants.

5. A condition of the policy is, that the policy shall be vitiated if the premises insured become vacated by the removal of the owner or occupant for a period of more than twenty days without immediate notice to the company and written consent--HELD: It was competent for the insurer or his lawful agent to waive this condition; and if at the time the agent of the company received the premium of insurance and delivered the policy he had knowledge of the vacation of the property, and did not then avoid the policy, but treated it as valid and subsisting, such conduct of the agent was a waiver of the condition, and a breach of it cannot be relied on by the company to defeat a recovery upon the policy.

6. As to waivers by the insurers of conditions in a policy, how and by whom they may be made, see the opinion of Burks, J.

7. A condition of the policy required immediate notice of loss and that within thirty days the insured render a particular account thereof with an affidavit, & c.--HELD: If the insurers, from any reliable source, knew that the building insured had been destroyed by fire, and by any act or declaration of theirs, or of their lawful agent, prevented the assured from preparing the schedule with the affidavit thereto required by the policy within the thirty days whether verbally or in writing, it was a waiver of the performance of the condition within the thirty days of that condition; and the omission to do so is no bar to the action on the policy, provided it was done within a reasonable time thereafter.

8. If at the time of issuing a policy I had been authorized by the insurance company to receive and accept proposals for risks subject to their approval and ratification, to issue and deliver policies and renew the same, and receive premiums therefor, and had been supplied with blanks signed by the president, to be filled and countersigned by him; this constituted I the general agent of the company, and the company is bound by all his acts as such within the scope of his authority, so long as it existed, notwithstanding any private instructions which he may have received limiting that authority, of which the assured had no notice.

This case is fully stated by Judge Burks in his opinion.

Kirkpatrick & Blackford, for the appellant.

Kean and John W. Daniel, for the appellee.

BURKS J.

This is a supersedeas allowed by one of the judges of this court to a judgment rendered by the corporation court for the city of Lynchburg in behalf of Bettie J. Kinnier, administratrix of Alexander Kinnier, (defendant in error), against the plaintiff in error, the Georgia Home Insurance Company, a corporation created by the state of Georgia.

The action was assumpsit on a policy issued by the plaintiff in error, insuring the said Alexander Kinnier and his " legal representatives to the amount of $2,000, against loss by fire on a dwelling house situate on Daniel's hill in the city of Lynchburg, and to the amount of $1,000 against like loss on household furniture and other personal property contained in said building. The plaintiff in her declaration alleged the destruction of the building by fire, and claimed the amount of the insurance upon it. The defendant demurred to the declaration, and also pleaded the general issue. The demurrer was overruled, and on the trial of the issue by the jury the plaintiff and defendant both moved for instructions.

The first instruction asked for by the defendant was refused by the court, and a bill of exceptions was taken to the refusal. This is bill " No. 1" in the record.

The defendant then asked for eight other instructions. The court refused to give the fifth, sixth and seventh; and also refused to give the first, second, third, fourth and eighth in the form in which they were asked, but gave them with modifications of each; and also gave three asked for by the counsel for the plaintiff. To this ruling of the court the defendant's counsel excepted, and the instructions refused, and, as given with modifications, are found in the bill of exceptions " No. 2." By this bill all the evidence of both parties is made a part of the record.

The jury found a verdict for the plaintiff for $2,000, with interest from the first day of April 1871. The defendant thereupon moved for a new trial, upon the ground that the verdict was contrary to law and the evidence. The motion was overruled, and a bill of exceptions, " No. 3," was taken, in which the facts were certified.

The first assignment of error is to the judgment of the court overruling the demurrer, and this may be most conveniently disposed of in this connection.

The first, and I suppose the chief objection made to the declaration is, that the action was improperly brought by the administratrix, and could only be maintained by and in the name of the heirs of the plaintiff's intestate.

The declaration alleges that " the defendants entered into and duly executed a certain writing, commonly called a policy of insurance, and delivered the same to the plaintiff, wherein and whereby in consideration of the receipt of $37.50 paid by the plaintiff to the defendants, the said Georgia Home Insurance Company did insure the said Alexander Kinnier and his legal representatives $3,000, & c."

It is contended that by the terms " legal representatives," used in the declaration pursuing the tenor of the policy, the heirs at law of Alexander Kinnier were intended, so far as the insured building is concerned. I do not think this is the proper construction of the policy. The policy declared upon, and as set out, is a contract to indemnify Alexander Kinnier personally. The words " legal representatives," as used, are of the same import as the words executors, administrators, personal representatives. The policy as set out is a simple contract; and upon the death of Alexander Kinnier, passed like his bonds, notes, and other choses in action to his administratrix; and she only had a right of action upon it.

We have been referred by the counsel for the plaintiff in error in support of his objection, to the case of Haxall's ex'ors v. Shippen & wife, 10 Leigh 536. That case involved incidentally the construction of a covenant for insurance entered into by the Mutual Assurance Society, a corporation created by the laws of this state. The covenant in terms stipulated for payment in case of loss to the assured, " his heirs and assigns; " and it was construed in a chancery suit, in which the form of proceeding was not a question, as a covenant real, which enured to the benefit of the heir. Whatever may have been the proper construction of the covenant in that case, I do not think the policy in this case can be properly construed as intended to enure to the benefit of the heirs. However that may be, the statute (Code of 1873, ch. 126, § 19) it seems would give the administratrix the right to maintain this action.

The second objection seems to be based upon a misconception. The declaration substantially alleges a contract made and entered into by the defendant with the plaintiff's intestate, the consideration of which (the premium) is stated to have been paid by the plaintiff, and by fair intendment to have been paid by her in her representative capacity.

The remaining objections, the one specially set out in the demurrer, and the other assigned as error in the petition, seem to be merely formal, and do not require any special notice. I am of opinion there was no error in overruling the demurrer.

The policy in this case, as is usual in such writings, contains a multitude of conditions, exceptions, limitations and restrictions, amongst which are the following, which I number for convenient reference:

* * * * * " The company is not liable,

1. * * * * for loss, if there is other prior or subsequent insurance, without written consent of this company.

2. And if the title of the property is transferred or changed, or the policy is assigned without written permission hereon, the policy shall be void.

3. And the entry of a foreclosure of a mortgage, or the levy of an execution, shall be deemed an alienation of the property, and this company shall not be holden for loss or damage thereafter.

4. * * * * This policy shall be vitiated * * * * if the premises hereby insured become vacated by the removal of the owner or occupant for a period of more than twenty days, without immediate notice to the company and written consent.

5. Any change within the control of the assured, material to the risk, shall avoid this policy.

6. All persons having a claim under this policy shall give immediate notice of the same, and within thirty days render a particular account thereof,...