Nicholas Valenti v. Imperial Assurance Co

• Decision Date: 02 January 1935
• Parties: NICHOLAS VALENTI v. IMPERIAL ASSURANCE CO
• Court: Vermont Supreme Court

176 A. 413

107 Vt. 65

NICHOLAS VALENTI v. IMPERIAL ASSURANCE CO

Supreme Court of Vermont

January 2, 1935

Special Term at Rutland, November, 1934.

Insurance---"Unconditional and Sole Ownership"---Validity of Such Condition---Effect of Fraud or Waiver by Insurer as to Such Condition---Evidence---Uncontradicted Statement of Witness as Not Necessarily Conclusive---Witnesses---Matters Which May Be Considered with Respect to Witness' Statement---Jury Question---When Ownership is Question of Fact and When Mixed Question of Fact and Law---Judicial Notice---Matter of Common Knowledge---Sufficiency of Evidence To Make Question of Ownership for Jury---Presumption as to Question Being Submitted to Jury under Proper Instruc- tions in Absence of Exception---Modification of Provision in Fire Insurance Policy as to Sole Ownership by Subsequent Provision Therein---Construction of Fire Insurance Policy---Affirmance in Supreme Court on Ground Not Raised Below---Effect of Giving Chattel Mortgage on Insured Property in View of Policy Provisions.

1. Meaning of "unconditional and sole ownership" requirement of fire insurance policy is that no person other than insured has any title to property and that insured alone will sustain entire loss if property burns.

2. Condition of fire insurance policy that it shall be void "if the interest of the insured be other than unconditional and sole ownership," in absence of fraud or deceit by insurer, must be given effect as valid, unless waived by insurer.

3. If property insured was in fact owned jointly by husband and wife, condition therein as to unconditional and sole ownership by husband would be violated, and no recovery can be had thereon, in absence of fraud or waiver by insurer.

4. That husband and wife, In ACTION OF CONTRACT on fire insurance policy containing condition as to unconditional and sole ownership by husband, both testified that they owned such property, and statement was not specifically denied, held not necessarily to control effect of their testimony, since statements of witness not directly contradicted are not always conclusive.

5. Statements of witness not directly contradicted may not be arbitrarily disregarded, but court may disbelieve them or part of them, and may give them construction differing from their literal effect.

6. Circumstances, character, and subject-matter of testimony may be considered before effect is given to witness' statement, and under such rule, whenever testimony is equivocal, it is to be admitted and its interpretation left to jury under proper instruction.

7. Ownership is usually question of fact, but when it depends on conflicting evidence, it is mixed question of law and fact facts being for determination of jury, and their effect being for court.

8. It is matter of common knowledge that it is customary for any member of family to speak of property as "ours," referring to right or privilege of use and enjoyment of such property.

9. In ACTION OF CONTRACT on fire insurance policy containing condition as to unconditional and sole ownership by husband though both husband and wife testified that property belonged to them, held that, under circumstances of case question of ownership was for jury under proper instructions.

10. In such action, under circumstances of case, Supreme Court, on exceptions by defendant, will assume that question of ownership of insured property was submited to jury under proper instructions, where no exception specifically claiming contrary is urged.

11. Where condition as to unconditional and sole ownership in fire insurance policy contained provision that policy should be void for violation thereof unless otherwise provided by agreement in writing added thereto, and rider attached thereto, after specifying different household furnishings and personal property insured, added "all belonging to the insured or any member * * * of the insured's household," held that such addition controlled so far as it conflicted with sole ownership condition.

12. Fire insurance policy is to be construed in favor of insured.

13. Condition respecting sole ownership in fire insurance policy held inapplicable in view of its provision as to effect of agreement in writing added thereto, and of rider attached.

14. Trial court may not be put in error on point not made below, but affirmance may be upon ground first raised in Supreme Court, or on any legal ground whether raised or not.

15. Fire insurance policy containing provision that policy should be void if any change took place in interest, title, or possession of subject of insurance, held not voided by giving of chattel mortgage on some of insured property by insured, in view of further provision in policy that insurer should not be liable, in absence of agreement in writing added to policy, for any loss to property while encumbered, but "only for loss or damage to any other property insured hereunder," insurance contract making policy divisible, but recovery could only be had for loss of unencumbered property.

ACTION OF CONTRACT on fire insurance policy. Plea, general issue. Trial by jury at the March Term, 1934, Rutland County, Buttles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Fenton, Wing & Morse for the defendant.

James P. Leamy, Marvelle C. Webber, and Christopher A. Webber for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and SHERBURNE, JJ.

OPINION

POWERS

The plaintiff had judgment below for the amount of the loss by fire of certain personal property included in a policy issued by the defendant. At the close of the evidence, the company filed a motion for a verdict, and excepted when its motion was overruled. The only questions relied upon in this Court are brought up under this exception, and are based upon the grounds that (1) the plaintiff was not the sole owner of the property when the policy was issued, and (2) that he mortgaged it after the policy was issued. The policy is in standard form, with a rider attached. On the back of it is a printed enumeration of conditions under which it shall be void. It is therein provided that the policy shall be void "if the interest of the insured be other than unconditional and sole ownership."

The defendant insists that the uncontradicted evidence shows that the property insured belonged to the plaintiff and his wife, jointly.

The meaning and effect of this condition was recently stated by this Court in Bardwell v. Commercial Union Assurance Co., 105 Vt. 106, 112, 163 A. 633. It means that no person other than the insured has any title to the property and that the insured alone will sustain the entire loss if the property burns. In the absence of fraud or deceit on the part of the insurer in regard thereto, the clause must be given force and effect as a valid condition of the policy, unless such a result has been averted by a waiver by the insurer.

So here, if the property insured was in fact owned jointly by Valenti and his wife, the condition above stated is violated, for no fraud or waiver is claimed; and, if the condition is broken, no recovery can be had. Wilson v. Commercial Fire Assur. Co., 90 Vt. 105, 108, 96 A. 540; Schroedel v. Humboldt Fire Ins. Co., 158 Pa. 459, 27 A. 1077; Western Assurance Co. v. White, 171 Ark. 733, 286 S.W. 804, 48 A.L.R. 349, 351, and note; Fulbright v. Phoenix Ins. Co., 329 Mo. 207, 44 S.W.2d 115.

It is true that both the plaintiff and his wife testified that this property belonged to them--that they owned it. It is true that this statement was not specifically denied. But this fact does not necessarily control the effect of the testimony. The statement of a witness not directly contradicted is not always conclusive. Tracy v Grand Trunk Ry. Co., 76 Vt. 313, 325, 57 A. 104; Miller v. Miller, 89 Vt. 547, 549, 95 A. 928; Watts v. Mulliken's Estate, 95 Vt. 335, 342, 115 A. 150; Carr v. Carr, 100 Vt. 65, 71, 135 A. 5. Such statements are not to be arbitrarily disregarded, of course, but a court may, on occasion, disbelieve them or some part of them, and may accord to them a construction differing from their literal effect. Searle v. Gerent et al., 114 Conn. 671, 159 A. 892, 893. The circumstances, together with the character and subject-matter of the testimony, may be considered before effect is given to a witness' statement. Whenever testimony is equivocal, by the latter rule, it is to be admitted...