Mut. Fire Ins. Co. Of Loudoun County v. Ward

• Decision Date: 27 September 1897
• Citation: 28 S.E. 209,95 Va. 231
• Parties: MUTUAL FIRE INS. CO. OF LOUDOUN COUNTY v. WARD.
• Court: Virginia Supreme Court

28 S.E. 209

95 Va. 231

MUTUAL FIRE INS. CO. OF LOUDOUN COUNTY

v.WARD.

Supreme Court of Appeals of Virginia.

Sept. 27, 1897.

Insurance — Agents — Notice—Condition as to Otheh Insurance —Insurable Interest — Pleading — Demurrer.

1. Knowledge continuing on the part of an insurance company of other insurance on the property insured constitutes a waiver of a condition printed in the policy that such other insurance must be made known to the company, and indorsed on the policy, or the policy shall be void.

2. An insurance agent authorized to receive and accept risks, fix premiums, receive payments, and issue "binding receipts, " is presumed to have had such authority that notice to him would be notice to the company; and, in the absence of any knowledge on the part of the insured of any limitation on the agent's authority, representations to the agent, though not communicated to the company, will be binding upon it, and work an estoppel as to the condition of no other insurance, printed in the policy.

3. Where one applied for insurance on property not covered by other insurance, and the company, for its own convenience, included in one policy other property already insured by it, but the insured paid premiums and expenses as on separate policies, a subsequent placing of insurance on the first-mentioned property without the consent of the company will not defeat a recovery for the loss of the other property, though the policy contained provisions avoiding it if other insurance should be placed on the property embraced therein, without the company's consent

4. Though a declaration in an insurance policy fails to set forth the interest of plaintiff in the property insured, it is not demurrable on that ground, since such defect can be reached only by special demurrer, which has been abolished.

5. A landlord has an insurable interest in the furniture of a tenant owing him rent, while such furniture remains on the leased premises.

Error to circuit court, Frederick county.

Action by George W. Ward against the Mutual Fire Insurance Company of Loudoun County to recover for loss under a fire insurance policy. From judgment in favor of plaintiff, defendant brings error. Affirmed.

John J. Williams and A. Nicholls, for plaintiff in error.

Barton & Boyd and A. Moore, Jr., for defendant in error.

KEITH, P. George W. Ward brought suit in the circuit court of Frederick county against the Mutual Fire Insurance Company of Loudoun County to recover loss by fire of a dwelling house valued at $3,200, and household fur niture, clothing, and provisions valued at $300, insured by the defendant. The company appeared, and entered several pleas, and at the trial asked for a number of instructions; and the objections of the defendant to the rulings of the circuit court upon these pleas and instructions are set out in bills of exceptions, and made the subject of assignments of error in its petition to this court. There was a verdict and judgment for the plaintiff, and the defendant applied for and obtained a writ of error from one of the judges of this court.

It is not proposed to deal with the several questions presented in this record in detail. They are controlled by a few principles of law which we will now proceed to discuss, but first it will be necessary to state the facts proved before the jury.

It appears that in 1874 Ward took out a policy of insurance in the defendant company, and that the premiums were paid on it on the 1st day of each January thereafter, through Bowen, the then agent, until 1879. In 1876 the property insured was sold by Ward to Walker, and in 1877 Walker insured this property in the Home Insurance Company of New York, through Bowen, who was also the agent of the plaintiff in error. In April, 1878, the policy of Walker in the Home Insurance Company was indorsed: "Loss, if any, under this policy on dwelling, payable to George W. Ward. [Signed] Walter Bowen, Agent." This, it is conceded, was not double insurance, the policy being taken out in the name of Walker, who had an insurable interest therein, and being indorsed for the benefit of Ward, who had a lien upon it for the purchase money. When the policy expired, in November, 1878, it was renewed to November, 1879, with the same indorsement as to payment to Ward. Premiums on both policies were paid by Walker. January 1, 1879, Bowen received an annual premium on the policy in the defendant company; and in May of that year he ceased to be the company's agent, though he continued, as a member of the firm of insurance agents, to be the agent of the Home Insurance Company. One Clevenger thereupon became the agent of the defendant company. Afterwards Hugh S. Lupton became the agent of the defendant company In Winchester, Frederick county; and in December, 1891, Ward applied to him for insurance upon a tenant house. The policy No. 2, 705, issued in.1874, was then In force, all premiums upon it having been paid. When application was made for insurance on the tenant house, Ward, in answer to Inquiries, told Lupton that there was no other insurance on the tenant house; that there had been $500 on the tenant house and other property in the Home Insurance in the same policy in which he had $2,000 insurance on his dwelling house, Hansbrough & Carter being the insurance agents; but that he had directed them to cancel the insurance on the tenant house. Lupton, the agent, took time to examine the property; and on the last of December, 1891, or first of January, 1892, Wardagain met him in the city of Winchester. Lupton gave him the application which is set out in full in the record. A number of questions are asked in this application, which the applicant for insurance is required to answer, and he is also required to sign the application. The application in this case was written out by the agent, and in reply to the question, "What amount is there now insured on the property, in what office, and in whose name?" the answer is given, "No other insurance." This application was signed by the applicant, George W. Ward. The policy was in due course issued in accordance with this application, and upon its receipt Ward discovered that it embraced the dwelling house, furniture, and the tenant house and other property. It will be remembered that he already had a policy upon the dwelling house and furniture, and that he had only applied for insurance upon the tenant house. Upon receipt of the policy, he called Lupton's attention to this fact, but Lupton replied that the company had thought it best to embrace all of Ward's property insured by it in one policy. Ward, however, retained his original policy taken out in 1874 until the year it expired, for which the premiums upon it had been paid. He then continued from that time until the loss occur red to pay to Lupton, as agent of the defendant company, the annual premiums as they fell due on policy 18, 660. Some time after the date of the policy sued on, Ward, when paying Lupton a premium in his office, said to him: "The premium in your company [meaning the defendant company] is much less than the premium in the other company [meaning the Home Insurance Co.], in which I have a policy on my dwelling house." It thus appears that there was abundant evidence tending to prove that Hugh S. Lupton, the agent of the company through whom the policy was issued, had notice before and at the time of the issuing of the policy and receipt of the premiums that Ward had insurance to the amount of $2,000 upon the dwelling house and furniture in the Home Insurance Company of New York. After these transactions were had, it appears that Ward took out an additional policy upon the tenant house, stable, shed, and contents, of which there is no evidence that the defendant company or its agents had notice.

It is believed that these are all the facts which need be considered.

On behalf of the defendant company it Is contended that the policy having been issued to Ward upon a written application signed by him, in which it is stated that there was no other insurance upon his property, and the fact of such other insurance not having been made known to the company, and indorsed on the policy or otherwise acknowledged in writing, the policy of the company is void; that the contract evidenced by the policy Is an entire contract, and that, Ward having subsequently reinsured a part of his property embraced in it in another company without the knowledge of the defendant company or its agent, the entire policy was rendered void; that this Is a condition in the policy of insurance, and is also a warranty by the insured by virtue of the statement made by him in his written application. And, in support of this contention, the defendant company relies upon article 5 of the policy, which is in the following words: "If any property insured by this company shall be already insured, or shall be hereafter insured by any other company or companies or individuals or otherwise, such insurance or insurances must be made known to this company, and indorsed on the policy or otherwise acknowledged in writing, or otherwise the policy of this company shall be void. And, in case of any other insurance on the property insured by this policy, it is expressly declared that in case of loss or damage by fire, that the insured shall not be entitled to recover from or claim from this company any greater proportion of the loss sustained than the amount insured by this company shall bear to the whole amount of the insurance on the property so damaged or destroyed."

Upon the part of the defendant in error it Is insisted that the condition set out in the policy and the warranty relied upon were inserted for the benefit of the insurer, and that it was entirely competent for the company to waive the forfeiture denounced In the article Just quoted, and that, having issued the policy and received the premiums with the knowledge that "other Insurance" had been taken upon the property subsequently destroyed by...