Nat'l Union Fire Ins. Co v. Burkholder

• Decision Date: 12 November 1914
• Citation: Nat'l Union Fire Ins. Co v. Burkholder, 83 S.E. 404, 116 Va. 942 (1914)
• Parties: NATIONAL UNION FIRE INS. CO. v. BURKHOLDER.
• Court: Virginia Supreme Court

83 S.E. 404

116 Va. 942

NATIONAL UNION FIRE INS. CO.

v.BURKHOLDER.

Supreme Court of Appeals of Virginia.

Nov. 12, 1914.

1. Appeal and Error (§ 999*) — Vebdict — co nclusiveness.

Questions fairly submitted to the jury are concluded by the verdict.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3912-3921, 3923, 3924; Dec. Dig. § 999.*]

2. Teial (§ 75*)—Objections—Time.

Where the insurer claimed that the insurance was excessive, and admitted without objection evidence that the house could be rebuilt for $800, its objection to the competency of evidence that it would cost $1,200 or more to rebuild was properly overruled.

[Ed. Note.--For other cases, see Trial, Cent Dig. §§ 171-182, 252; Dec. Dig. § 75.*]

3. Insueance (§ 660*)—Action on Policy-Evidence—Value.

In an action on a policy entitling insured to recover three-fourths of the actual cash value of the building at the time of the fire, evidence of the cost of rebuilding was admissible on the question of its cash value at the time of the loss.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1695; Dec. Dig. § 660.*]

4. Insueance (§ 648*)—Relevancy or Evidence— Character.

Where the insurer claimed that the insurance was excessive, evidence as to the honesty of the plaintiff's husband, in no way involved in the case, was inadmissible, under the general rule that in a civil action neither the character of the parties nor of any other person can be inquired into.

[Ed. Note.—For other cases, see Insurance. Cent. Dig. §§ 1669, 1676; Dec. Dig. § 648.*]

5. Insurance (§ 660*)—Action on Policy-Evidence—Value.

Where the evidence did not show that the property had been fraudulently overvalued for insurance, evidence as to the amount of insurance witness carried on the property.prior to the date of the policy was immaterial.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1095; Dec. Dig. § 660.*]

6. Insurance (§ 76*)—Action on Policy-Sufficiency of Evidence—Agency.

In an action on a fire insurance policy, evidence held to show that the person negotiating it was the authorized local representative of an insurance agency representing the insurer.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 101; Dec. Dig. § 76.*]

7. Insurance (§ 73*)—Agency for Insurer —Agent.

The local representative of the general agent of the insurer, who effected the insurance, delivered the policy, and collected the premium, was the "agent" of the insurer.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 99, 100; Dec. Dig. § 73.*]

8. Insurance (§ 378*)—Waiver—Notice to Agent.

Notice of the breach of any condition of a policy given to the local agent of the insurer, authorized to contract for risks, deliver policies, and collect premiums, was notice to the insurer.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 968-997; Dec. Dig. § 378.*]

9. Insurance (§ 282*)—Interest of Insured.

Where the husband of the insured, before the insurance was effected, had purchased the property for her benefit, she paying the entire purchase money, although the deed was made to him, the policy was not void on the ground that the legal title was not in the insured when it was effected.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 601-635; Dec. Dig. § 282.*J

10. Insurance (§ 378*)—Waiver—Agent's Knowledge as to Insurer's Interest.

Where the fact that the property insured stood in the name of the husband of the insured was known to defendant's local and general agents, or could have been readily known, such knowledge was imputed to the insurer, and amounted to a waiver of the provision that the insured must be the sole and unconditional owner when the policy issued.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 96S-997; Dec. Dig. § 378.*]

11. Insurance (§ 533*)—Proof of Loss— Sufficiency.

In an action on a fire policy, all that is required of the insured is a reasonable and substantial compliance with its requirements as to proof of loss.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. § 1320; Dec. Dig. § 533.*]

12. Insurance (§ 559*) — Proof of Loss — Necessity.

Even though proof of loss was not in substantial compliance with the requirement of the policy, it would not defeat recovery, where the insurer repudiated any liability on the ground that the interest of insured was not truly stated in the policy.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 1391, 1392; Dec. Dig. § 559.*]

Appeal from Circuit Court, Shenandoah County.

Action by Emma C. Burkholder against the National Union Fire Insurance Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Walton & Walton, of Woodstock, for plaintiff in error.

Tavenner & Bauserman, of Woodstock, for defendant in error.

HARRISON, J. It appears that the policy here involved was issued by the defendant company on the 20th day of November, 1912, upon a certain building, payable to Emma C. Burkholder, for $800, upon which, in the event of destruction by fire, she was entitled to recover three-fourths of the actual cash value of the building at the time of the fire. The building was destroyed by fire on the 29th day of November, 1912, and after some months of futile effort to secure payment of the amount due under the policy this suit was brought by the beneficiary, and a verdict and judgment obtained for $600; that being the amount claimed by the plaintiff. This judgment we are asked to review.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes There was no sufficient ground for sustaining the demurrer to the plaintiff's declaration, and it was, therefore, properly overruled.

We are of opinion that the charge of arson, asserted by the company as one of its grounds of defense, is not supported by the evidence. The question of whether or not the building was willfully burned was fairly submitted to the jury, and their verdict in favor of the plaintiff sets at rest further controversy on the subject

We are further of opinion that the charge of the defendant that excessive insurance was obtained on the building is not sustained by the evidence. This question was also fairly submitted to the jury, and their find ing, upon the evidence, closes that controversy.

We are further of opinion that there was no valid objection to the evidence tend-to show the cost of a new building of the size and description of that destroyed. The defendant had made the point that the insurance was excessive, and had admitted without objection evidence tending to show that the house could be rebuilt for $800; but when the evidence under consideration, showing that it would cost to rebuild it $1,-200 or more, was adduced, objection was made to its competency. If the objection had been entitled to any force, it should have been made in the beginning, and not after the company had obtained by such delayed objection evidence on the subject favorable to it. The evidence tended to show the cash value of the building destroyed at the time of the fire, and was only introduced for that purpose; the court expressly advising the jury that it could only be considered as aid in the ascertainment of such value. Evidence of the cost at the time of the trial of such a building as that destroyed is admissible as bearing on its value at the time of the loss. Am. & Eng. Ency. Law, vol. 16, p. 964.

[*] We are further of opinion that there was no error in the court's refusal to permit Dr. Miller to testify as to the honesty of J. C. Burkholder, the husband of the plaintiff. His honesty was not an issue, and was in no way involved in the case. The general rule is that in a civil action the character of neither party thereto, nor of any other person, is involved, and cannot be made the subject of inquiry. Am. & Eng. Enc. Law, vol. 5, p. 861. The record furnishes no suggestion why this case should be taken from under the operation of the general rule mentioned.

We are further of opinion that there was no error in refusing to permit the witness Hoover to testify as to the amount of insurance he carried on this property some time prior to the date of the present contract. The witness was permitted to give his estimate of the fair cash value of the property I at the time of the fire, but it was a matter of no consequence what amount of insurance had been carried on the property for...