Horton v. Home Ins. Co.
| Decision Date | 26 April 1898 |
| Citation | 29 S.E. 944,122 N.C. 498 |
| Parties | HORTON et al. v. HOME INS. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Anson county; Starbuck, Judge.
Action by George P. Horton and others against the Home Insurance Company. From a judgment rendered for plaintiffs, both parties appealed. Affirmed.
An insurance company having knowledge that a condition had happened which gave it the right to cancel the policy, its failure within a reasonable time to notify the insured of its intention to cancel the policy, and to return the unearned portion of the premium, is evidence tending to show a waiver.
R. T Bennett, for plaintiffs.
James A. Lockhart, for defendant.
This is an action brought on a policy of insurance to recover three-fourths of the value of a house destroyed by fire. The property belonged to the plaintiff, but was conveyed by deed of trust to certain trustees, to secure a bond given to the Life Insurance Company of Virginia. The policy was on its face made payable to the Life Insurance Company of Virginia mortgagee, and provided that it should be void on several contingencies, among others: "If, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." It also provided that On July 5, 1894, the trustees advertised the property for sale, in a weekly newspaper published in the town of Wadesboro, under the deed of trust, and on August 7, 1894, before any sale, the property insured was totally destroyed by fire. No notice of this sale was given by the trustees to the insured or her husband, and they had no knowledge or information that the property would be advertised for sale, before they saw the advertisement in the newspaper some time before the fire. The resident agent of the defendant company testified that he issued the policy was a regular subscriber of the said paper, and saw the advertisement while it was running through the paper, before the fire. No part of the unearned premium was ever repaid or tendered to the insured. It was admitted that the insured had in due time given the notice and sent on proofs of loss according to the provisions contained in the policy. The following issues were submitted to the jury: "(1) Did plaintiff Martha C. Horton have knowledge of the notice of sale under the deed of trust of the property insured, and, if so, when was such knowledge acquired? A. Yes; after the publication of the notice by the trustees, and before the fire, which occurred while said notice was being published. (2) Did W. A. Rose, local agent of the Home Insurance Company, have knowledge of said notice of sale, and, if so, when was such knowledge acquired? A. Yes; after said publication of notice, and before the fire. (3) Did defendant, Home Insurance Company, waive the breach, if any, by the plaintiffs of the conditions of the policy? A. No. (4) What was the cash value of the plaintiffs' house at the time of its destruction? A. Twenty-two hundred and fifty dollars ($2,250). (5) In what sum, if any, is defendant, Home Insurance Company, indebted to plaintiff Martha C. Horton, on her policy of insurance? A. $1,687.50. The first and second issues were answered by consent; the third was answered under the instruction of the court that there was no evidence of waiver; and the fifth issue was answered by the court as a consequence of the fourth, upon an agreement that the defendant, if liable at all, was indebted to the feme plaintiff to the amount of three-fourths of the value of the property as found by the jury. After the finding upon the fourth issue, the defendant contended that the court should answer the fifth issue "Nothing," and moved for judgment on the first and third issues and responses thereto; the contention of the defendant being that its liability upon the policy had ceased before the fire, by reason of the stipulation which provides that the entire policy, unless provided by agreement entered thereon or added thereto, shall be void if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed. The court refused this motion, and gave judgment for the plaintiff; whereupon the defendant appealed. This brings before us a pure question of law, founded upon the charge of the court, in which we see no error.
Admitting the validity of a provision rendering the policy void upon a contingency beyond the control of the assured, the only reasonable construction we can give to it is that it was intended to compel the assured to give notice to the company of any such proceedings or advertisement, so that the company could exercise its right to declare the policy void, and return the unearned premium, which it was required to do by the very terms of the policy. But the assured could not be required to give information which she did not possess, and which came to her only in the same manner and through the same means that it came to the agent of the defendant, whose knowledge is in law that of the defendant. It is probable that, as the agent lived in the same town where the newspaper was published, he saw the advertisement before the plaintiff, who lived in a different town. In any event, she has violated no provision of the contract of insurance either in letter or in substance, as the notice of sale was given without her knowledge. If the defendant stands upon the letter of the contract, ignoring the equities of the plaintiff, he must be satisfied with what is given him by a literal interpretation. If he demands his full pound of flesh, he must take that and nothing more.
We are of opinion that the judgment is correct upon the issues as found by the jury, even in the absence of a waiver. If, under proper instructions from his honor, the jury had found that there was a waiver, as they might well have done from the evidence, the case would be that much stronger for the plaintiff; but as the error of the court consisted in directing a verdict...
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