Homestead Fire Ins. Co v. Ison

• Decision Date: 09 September 1909
• Citation: 65 S.E. 463,110 Va. 18
• Parties: HOMESTEAD FIRE INS. CO. v. ISON.
• Court: Virginia Supreme Court

65 S.E. 463

(110 Va. 18)

HOMESTEAD FIRE INS. CO.

v.ISON.

Supreme Court of Appeals of Virginia.

Sept. 9, 1909.

1. Insurance (§ 358^*) —Premiums —Extension or Credit by Agent.

Where an insurance company gave its agent full power to deliver policies and collect premiums, and treated a premium as paid, it was bound by the agent's act in extending credit to insured for a part of the premium, or in taking out part of it in trade.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 915, 1034; Dec. Dig. § 358.*]

2. Time (§ 9*) — Computation — Excluding First Day.

Where an act is to be performed within a specified period from or after a day named, the rule is to exclude the first day designated and to include the last day of the specified period.

[Ed. Note.—For other cases, see Time, Cent. Dig. § 11; Dec. Dig. § 9.*]

3. Insurance (| 335*)—Policy—"Issuance."

The legal definition of "issuance" is the act of sending out officially, delivering for use, and putting into circulation; and the issuance of an insurance policy is the date of its delivery to insured, and a provision therein requiring an inventory of insured goods within 30 days of the issuance of the policy meant 30 days from its delivery, and not from its date.

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 335.*]

4. Insurance (§ 229*)—Cancellation—Misrepresentation op Agent—Effect.

Where an insurance agent got a fire policy from insured's wife upon the pretense that he had charged too much and wanted to refund, and immediately marked it canceled, and failed to give insured five days' notice of cancellation, as required, before loss, the policy would be considered in full force at the time of the fire.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 501; Dec. Dig. § 229.*]

5. Insurance (§ 335*)—Iron Safe Clause.

An "iron safe clause" in a fire policy required insured to make an inventory within 30 days from the issuance of the policy and required books to be kept of the business. Held, that the clause only required books to be kept after the inventory was taken, so that the failure to keep such books did not defeat a recovery, where a loss occurred within 30 days from the issuance of the policy and no inventory had been made.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 853; Dec. Dig. § 335.*]

6. Insurance (§ 539*)—Notice of Loss—Sufficiency.

The day after the fire insured put his claim against the insurer in the hands of his attorneys, who immediately wrote and posted a letter to the agency which had issued the policy, giving them notice of the fire. An agent of the company was present at the fire, and therefore had full knowledge. There was a delay of a few days in giving the insurer notice, occasioned by the agent having procured the policy from insured by misrepresentation shortly before the fire. Held, that there had been due diligence under the circumstances, and that the notice of loss was sufficient.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1328-1336; Dec. Dig. § 539.*]

7. Insurance (§ 563*)—Policy—Construction—Separation of Damaged Goods.

A provision in a fire policy requiring separation of damaged and undamaged goods after a fire is directory merely, and a failure to comply with it would not avoid the policy, but would only reduce the recovery by such amount as was lost to the insurer by failure to comply.

[Ed. Note.—For other cases, see Insurance, Dec. Dig. § 563.*]

8. Trial (§ 296*)—Misleading Instructions —Cure by Other Instruction.

In an action on a fire policy, under which there could be a recovery of three-fourths of the value of the goods damaged or destroyed by fire, a charge that, if the jury find for plaintiff, they should find for three-fourths the actual cash value of the total stock of goods insured by the policy, as fixed by them, not exceeding $1,000, though misleading, as liable to be taken to mean three-fourths of the stock of goods insured, was not prejudicial, where the charge was fully explained to the jury, especially where the evidence sustained the jury's conclusion that the value of the goods destroyed was $1,000 and a verdict for $750 was rendered.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 710, 718; Dec. Dig. § 296.*]

9. Appeal and Error (§ 1064*)—Review-Harmless Error — Misleading Instructions.

Where appellant is not prejudiced by a misleading charge, the judgment will not be disturbed because of it.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]

Error to Circuit Court, Wise County.

Action by George Ison against the Homestead Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Bond & Bruce, for plaintiff in error.

Morton & Parker and Irvine & Morison, for defendant in error.

HARRISON, J. In this case the plaintiff, George Ison, obtained against the defendant fire insurance company a verdict and judgment for $750 upon a policy issued by the company to secure the plaintiff from loss by fire of his stock of merchandise. This judgment is brought under review by the present writ of error.

It is contended by the insurance company that the policy never became effective, because the premium was never paid.

This position is not sound. The record shows that the Appalachia Insurance Agency, composed of Brooks & Sparks, were general agents of the defendant company, with blank policies signed by the president and secretary of the company In their hands, to be delivered by them to applicants for insurance. They had full authority to deliver policies, collect premiums, and make rates. The policy in this case receipts the payment of the premium, $48, and recites that it was issued in consideration of that premium, and further shows on its face that as between the company and the Appalachia Agency the premium in question was considered as fully paid. The plaintiff testified that when the agent delivered the policy to him he offered to pay him the whole amount in money, and was told that if he would pay $2 and some potatoes, and settle an account he had against the agent on his books, it would be sufficient, and that he (the agent) would trade out the balance with him, or call on him later if he needed more money. The agent says that he asked the plaintiff for $5; that the latter gave him $2.50, and said he was going to Kentucky to see about some money, and would settle in full when he returned; that he told him that would be all right, and delivered the policy.

The defendant was bound, in either view of the transaction. The company, having given its agents full power to collect the premium, and having treated the premium as paid, cannot now call in question the transaction of its agents in extending credit to the insured for a part of the premium. The policy in this case contains no condition that it shall not be effective unless the premium be paid, and nothing to show that the payment of the premium in money is a prerequisite to the taking effect of the contract.

An agent who has power to countersign and deliver policies, and who is responsible to the company for the premiums and their collection on all policies issued by him, binds the company by an agreement to extend credit to the insured. A valid payment may be made in other ways than in cash, if there has been an assent thereto by the insurer or its agent. 19 Cyc. 605, 606.

In the case of Wooddy v. Old Dominion Insurance Co., 31 Grat. 362, 31 Am. Rep 732, where this subject is discussed by Judge Burks, the syllabus says: "The terms of the insurance company having been agreed upon between the applicant for insurance and the agent of the Insurance company, the applicant tenders to the agent the money for the premium; but the agent, living in the house and being indebted to the applicant for rent, tells him he has in his hands money belonging to him for rent, and will credit him for that amount. This was a valid payment of the premium."

In the case of Wytheville Insurance Co. v. Teiger, 90 Va. 277, 18 S. E. 195, the policy provided that the company should not be liable until the premium was actually paid to it, thus making the case very much stronger in favor of the company than is the case at bar. Judge Lewis, In delivering the opinion of the court, says: "The firm of Milch, Fleishner & Co. were not only brokers, but, as just said, they were agents of the defendant company. Policies were sent to them directly from the home office, the premiums on which they were authorized to receive, and they were ostensibly authorized to waive a cash payment. Hence, when they delivered the policy in the present case without requiring payment of the premium, the presumption is a credit was intended, and that was a waiver of the condition of prepayment. If in such a case a waiver were not implied, the delivery of the policy would be not only an unmeaning, but a deceptive and fraudulent, ceremony"—citing 2 May on Ins. (3d Ed.) § 360; Miller v. Life Ins. Co., 12 Wall. 285, 20 L. Ed. 398. See, also, the recent case of Life Ins. Co. v, Hairston, 108 Va. 832, 62 S. E. 1057.

It is further contended that the plaintiff violated the clause of the policy requiring an invoice of the stock of goods to be made within 30 days from the issuance of the policy. In this connection will be considered plaintiffs instruction No. 2, which tells the jury that under the terms of the policy sued on the plaintiff was not required until 30 days after the issuance of the policy to take the inventory of the stock on hand; and if they believe from the evidence that it was not until the 13th day of February, 1907, or until some day after the 8th day of February, 1907, that the agent of the defendant delivered the policy in question to the plaintiff, and that on such date the minds of the parties for the first time met for a contract of insurance, and that the contract was on such date consummated, then the 30 days began to run only from such date, notwithstanding the policy...