Norfolk Fire Ins. Co v. Talley

• Decision Date: 08 June 1911
• Citation: 112 Va. 413,71 S.E. 534
• Court: Virginia Supreme Court
• Parties: NORFOLK FIRE INS. CO. v. TALLEY.

112 Va. 413

71 S.E. 534

NORFOLK FIRE INS. CO.

v.TALLEY.

Supreme Court of Appeals of Virginia.

June 8, 1911.

Insurance (§ 326*)—Fire Insurance—Provision Against Fireworks—General Merchandise Store.

In the absence of fraud or mistake, recovery cannot be had on a fire policy, conditioned to "be void if (any use or custom of trade * * * to the contrary notwithstanding) there be * * * on the above-described premises * * * fireworks, " where fireworks were kept in stock in the building at the time of the fire, and this, though the building was insured as a "general merchandise" store, and fireworks are generally kept in such a store; the keeping of them not being necessary in such a businens, and this, too, though the prohibition is in the printed part, and the description of the business to be conducted on the premises is in writing, the written part not overriding the printed part, except in case of irreconcilable conflict.

[Ed. Note.—For other cases, see Insurance, Cent. Dig. §§ 782-791; Dec. Dig. § 326.*] Error to Circuit Court, Louisa County.

Action Dy one Talley against the Norfolk Fire Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed and remanded.

Peatross & Savage and Gordon & Gordon, for plaintiff in error.

Bibb & Bibb and Jas. L Shelton, for defendant in error.

HARRISON, J. This suit was brought to recover on a policy of Insurance issued by the defendant company, insuring against loss by lire a certain building in the county of Louisa, used at the time as a store for general merchandise purposes. There was a verdict and judgment in favor of the plaintiff, to which this writ of error was awarded.

The first assignment of error, which was to the action of the circuit court in overruling the demurrer to the declaration, was properly abandoned at bar.

A number of defenses were made by the defendant, and a number of assignments of error have been taken to the rulings of the circuit court, and discussed here; but, in our view of the case, there is one defense which conclusively settles the controversy in favor of the defendant, and therefore it will not be necessary to deal with others.

Among other provisions, the policy sued on contains the following condition: "This entire policy shall be void if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used, or allowed on the above-described premises * * * fireworks."

Notwithstanding this express provision forbidding it, fireworks were kept in stock, and were in the building when the fire occurred. Over the objection of the defendant, the circuit court permitted the introduction of evidence tending to show that it was customary for general merchandise stores in. Louisa county to carry fireworks as a part of their stock in trade, and instructed the jury that, although they believed from the evidence that fireworks were in the store at the time of the fire, yet if they believed that such goods were kept in general merchandise stores in the course of trade, and this was the custom and habit of such stores in that section, that then the keeping of such fireworks could not be a bar to recovery under the policy sued on.

These rulings of the circuit court were clearly erroneous. Contracts of insurance are subject to the same rules of construction that are applicable to other written contracts. Home Ins. Co. v. Gwathmey, 82 Va. 923, 1 S. E. 209; U. S. Mut. Accident Ass'n v. Newman, 84 Va. 52, 3 S. E 805; Watertown Fire Ins. Co. v. Cherry, 84 Va. 72, 3 S. E. 876; Insurance Co. v. Devore, 88 Va. 778, 14 S. E. 532.

There is neither fraud nor mistake alleged in the execution of the policy in question. It is not denied that the plaintiff knew what the policy contained, but it is contended that the provision in question did not affect the right of the insured to keep and sell fireworks in the insured property, because it was usual in that county for general merchandise stores to keep and sell such goods; that the term "general merchandise" embraces fireworks, and the right to sell is implied, although the prohibition is express. This position cannot be sustained. The fact that fireworks are usually kept in country retail stores does not authorize their being kept and sold by one who has contracted in writing that he will not deal in them, and that the policy shall be void if violated in that particular. The reason for the prohibition may have arisen from the fact of the custom of selling fireworks in country stores; for, if the article was never found in such stocks, its prohibition would be useless.

The keeping of fireworks was a hazard which the premium paid did not cover, and its prohibition was, therefore, a material part of the contract, of the benefit of which the company could not be deprived because others kept fireworks in their stores....