New Brunswick Fire Ins. Co. Of v. Morris Plan Bank Of Portsmouth
| Decision Date | 14 June 1923 |
| Citation | 118 S.E. 236 |
| Parties | NEW BRUNSWICK FIRE INS. CO. OF NEW BRUNSWICK, N. J. v. MORRIS PLAN BANK OF PORTSMOUTH. |
| Court | Virginia Supreme Court |
Error to Circuit Court of City of Portsmouth.
Action by the Morris Plan Bank of Portsmouth against the New Brunswick Fire Insurance Company of New Brunswick, N. J. Judgment for plaintiff, and defendant brings error. Reversed, and final judgment entered for defendant.
Williams, Loyall & Tunstall, of Norfolk, for plaintiff in error.
Harry A. Brinkley, of Portsmouth, for defendant in error.
The plaintiff in error, hereafter called the company, insured an automobile for C. B. Toler. The policy (for $2.-000) contained this clause: "Loss, if any, payable to the Morris Plan Corporation, as their interest may appear." The defendant in error, Morris Plan Bank of Portsmouth, Va., hereafter called the plaintiff, has succeeded to all the rights of the Morris Plan Corporation. The automobile was destroyed, and its value at the date of its destruction was appraised at $1,600. The case was submitted to the trial judge, without the intervention of a jury, and there was a judgment in favor of the plaintiff for $1,305.12, the actual amount shown to be due to it by Toler.
It appeared upon the trial that among the conditions in the policy was one that it should be null and void, "if at the time a loss occurs there be any other insurance covering against the risks assumed by this policy which would attach if this insurance had not been effected"; and another that the policy should be void, "if the assured or his agent shall make any attempt to defraud this company either before or after the loss." It also appeared that, without the knowledge either of the plaintiff or of the company, Toler had thereafter taken out an additional policy of insurance upon the automobile for $2,000, with a company known as the National Union, which would have been valid at the time of the loss but for the existence of the policy sued on. That policy also had a similar clause, making it void "if at the time a loss occurs there be any other insurance covering against the risks assumed by this policy which would attach if this insurance had not been effected."
The company claimed exemption from liability upon two grounds: (a) That its policy had been avoided by reason of the other insurance in the National Union; and (b) because the assured, Toler, in making his proof of loss under the policy sued on, swore that there was no other insurance upon the automobile; and is here assigning as error the refusal of the court to enter judgment in its favor.
On the other hand, the plaintiff is here supporting the judgment and relying chiefly upon Sutherland v. Old Dominion Insurance Co., 31 Grat. (72 Va.) 176, where it was decided, under a clause of an insurance policy prohibiting other insurance, that the second policy, being itself void, is not a violation of the clause there involved. The languageof that policy, however, is different from that here under consideration. The language there is:
"If the assured shall have or shall hereafter make any insurance on the property hereby insured, or any part thereof, without the consent of this company written thereon, this policy shall be void."
This difference clearly distinguishes that case from this. The question there decided has been the subject of much discussion and difference of opinion between the courts in this country, and it is doubtless true that the weight of authority accords with the conclusion of a majority of this court in the Sutherland Case; there being two dissentients. It is unnecessary here further to notice this conflict of opinion, because in order to avoid the consequences of the construction which was so frequently put upon this clause the insurance companies have abandoned it and substituted therefor language intended to make such additional insurance a cause for invalidating the policy, whether such additional insurance be valid or invalid. Such clauses have also been construed differently by different courts. Some of the recent cases construing such a provision are collected in a note to 1 British Ruling Cases, at page 52. It is generally conceded, however, that such a provision is sufficient to accomplish its manifest purpose.
In Sugg v. Hartford Fire Ins. Co. (1887) 98 N. C. 143, 3 S. E. 732, we find this clear statement of the argument in...
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