Hamburg-bremen Fire Ins. Co v. Browning
| Decision Date | 23 June 1904 |
| Citation | 102 Va. 890,48 S.E. 2 |
| Parties | HAMBURG-BREMEN FIRE INS. CO. v. BROWNING. |
| Court | Virginia Supreme Court |
INSURANCE—CANCELLATION.
1. A policy of insurance was canceled when the agent advised the insured to that effect, and that the amount covering the unearned premium would be remitted to him upon receipt of the policy, especially as the amount of the unearned premium was not sufficient to keep the policy alive until the date of the fire.
Error to Circuit Court. Tazewell County.
Action by James S. Browning against the Hamburg-Bremen Fire Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed.
Chapman & Gillespie, for plaintiff in error.
Henry & Graham, for defendant in error.
This is an action of assumpsit brought by James S. Browning on a fire insurance policy issued to him by the plaintiff in error, through Messrs. Chapman & Hurt, its agents at Tazewell, Va., on a stable and contents, to an amount in the aggregate of $1,750, dated February 25, 1897. The property mentioned in the policy was destroyed by fire on the night of February 11, 1898. The plaintiff in error defended the action under the general plea of non assumpsit, upon the ground, among others, that the policy had been terminated prior to the date of the fire.
There were two trials. The first resulted in a verdict against the insurance company for $1,750, which was set aside because contrary to the law and the evidence. The second trial resulted in a verdict against the company for $1,735, which the court refused to set aside, and thereupon this writ of error was awarded.
A number of bills of exception were taken to the action of the lower court, which we deem it unnecessary to consider or discuss. The view taken of the case by this court is that there was a total failure on the part of the plaintiff to make out a case entitling him to recover, and therefore it is not necessary to do more than consider the assignment of error which involves the refusal of the court to set aside the verdict as contrary to the evidence.
This insurance agency represented a number of fire insurance companies, and had issued to the defendant in error and to his wife, Ollie H. Browning, a number of policies in different companies on several separate properties. No separate accounts were kept by these agents in the name of the several companies against Browning, but the whole account for all of the insurance, amounting to some $400 or $500 in premiums each year, was kept in the name of Chapman & Hurt against Browning, who had taken out all the insurance, and was paymaster for the premiums on the policies in his wife's name, as well as those in his own name. In the payments made by him, Browning never made or directed any special application thereof to any particular premium, but would make a general payment on "insurance account, " leaving the payments to be applied by the agents. The evidence is abundant to show that the defendant in error was always behind in the payment of his premiums, and that frequent and urgent demands were made upon him for payments; and, while he made some payments on general insurance account, the record shows that he never at any time paid the full amount of premiums on his policies, but was always in arrears to the agency.
On June 14, 1897, the agents wrote to Browning, reminding him of the statement sent on the 5th of that month, showing a balance due on account of premiums amounting to $110.55, urging him again to send check for the amount, and telling him that the companies were complaining of their failure to remit; that the companies were ordering cancellation of policies if premiums were not paid at once. No notice was taken of this letter, and on June 28, 1897, the agents again wrote to the defendant in error as follows: ...
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