North River Ins. Co v. Belcher

• Decision Date: 13 November 1930
• Citation: 155 S.E. 699
• Court: Virginia Supreme Court
• Parties: NORTH RIVER INS. CO. v. BELCHER.

155 S.E. 699

NORTH RIVER INS. CO.

v.BELCHER.

Supreme Court of Appeals of Virginia.

Nov. 13, 1930.

Insured claimed property was given to him by witness and wife without execution of deed, and insurer, sued on fire policy, to show knowledge by insured that witness' wife had only life estate in property, asked witness if it was not a fact that it is generally known by everybody how deed was made, to which witness replied, "yes, " and further asked witness whether everybody knew deed was to his wife and then to her heirs, to which witness replied that he did not know.

Notice of motion for judgment on fire policy alleged, with reference to insured's title to property, that legal title was given to insured by another, but that deed was not made, and that house was built by insured at own expense, all of which was known to insurer's agent. After insurer filed demurrers and grounds of defense, insured was permitted to amend notice to allege that land was given to himself and wife instead of to himself alone. Code 1910, § 6104, authorized trial court, in furtherance of justice, to allow pleadings to be amended at any stage of trial, and directed court to disregard any error or defect which does not affect substantial rights of parties.

Acts 1928, c. 256, § 1, Code Supp. 1928, § 4305a, provided that policy shall be void, unless otherwise provided, if interest of insured was other than unconditional and sole ownership, or if subject of insurance was building on ground not owned in fee simple, and that there should be no waiver unless in writing attached to policy. Act further required use of New York standard policy as standard fire insurance policy of state and prohibited any other agreement or condition except as indicated.

Error to Circuit Court, Dickenson County.

Action by Marion Belcher against the North River Insurance Company. Judgment for plaintiff, and defendant brings error.

Reversed.

Wm. G. Werth, of Tazewell, and Roland E. Chase, of Clintwood, for plaintiff in error.

Jno. W. Flannagan, Jr., of Bristol, and C. R. McCoy, of Clintwood, for defendant in error.

EPES, J.

Marion Belcher, hereinafter called the plaintiff, instituted, by notice of motion for judgment, an action in the circuit court of Dickenson county against the North River Insurance Company, hereinafter called the defendant, to recover on an insurance policy issued by the defendant for the loss by fire of his dwelling and the furniture and other personal property therein. Judgment was rendered in favor of the plaintiff against the defendant for $2,500; and the case is here on a writ of error granted to the defendant.

Copies of the policy sued on and the proof of claim filed by the plaintiff were attached to the notice as exhibits and made a part thereof.

The defendant demurred to the notice, whereupon the plaintiff asked leave to amend. The defendant then renewed its demurrer to the notice as amended, and also moved the court to dismiss the action on the ground that the notice showed that the policy sued on was void and unenforceable from its inception. The court overruled said demurrers and said motion.

Assignments of error 1 to 5, inclusive, relate to the rulings of the court on the pleadings; but we shall defer any discussion thereof until after we have stated the facts of the case.

Upon the trial of the case the defendant took four exceptions to the admission of evidence and two to the exclusion of evidence. Assignments of error numbered 6 to 11, inclusive, relate to these exceptions.

Assignments of error 6, 7, 8, and 11 relate to the admission of evidence introduced by the plaintiff for the purpose of showing that J. C. Mullins, who procured the application for the policy here in issue, was the agent of the defendant. Assignment of error No. 10 relates to the exclusion of evidence tendered by the defendant for the purpose of showing that Mullins was not its agent. In the view which we take of this case the plaintiff is not entitled to recover, even if it be admitted that Mullins was the agent of the defendant; and final judgment must be here entered for the defendant. Hence as no useful purpose can be served by a discussion of these assignments of error, we shall not notice them further.

After all the evidence of both the plaintiff and the defendant had been introduced, the defendant demurred to the evidence. Thereupon the question of damages was submitted to the jury under an instruction given by the court, and the jury returned a verdict for the plaintiff for $2,500, the full amount of the policy sued upon, subject to the opinion of the court on the demurrer.

The court overruled the demurrer to the evidence and entered judgment for the plaintiff on the verdict of the jury.

Assignment of error No. 12 relates to the instruction given to the jury by the court, and No. 13 to the refusal of the court to give the jury an instruction requested by the defendant. Assignments of error 14 and 15 relate to the action of the court in overruling defendant's demurrer to the evidence, and refusal to enter judgment for the defendant.

It is questionable whether the evidence can be said to be sufficient to establish the fact that J. C. Mullins, who procured the application for this policy, was, at the time he procured such application and the policy was issued, the agent of the defendant. But, as that is the conclusion most favorable to the plaintiff, for the purposes of this case we shall treat him as the duly qualified soliciting agent of the defendant, authorized to solicit insurance to be written by the defendant through its general agent, Tazewell Insurance Agency, Incorporated.

The other material facts established by the evidence are as follows:

By deed dated July 20, 1800, J. L. Sifers and his wife conveyed to their daughter, Martha E. Puckett, "for her natural life, and at her decease to the heirs of her body, " a tract of land near Haysi, in Dickenson county, Va., containing 191 acres.

Martha E. Puckett is the wife of John W. Puckett, and had nine children. Eight of them are living. One daughter, Bessie, has died, leaving three children, the oldest of whom is 14 or 15 years of age, and the youngest 3 years of age.

Marion Belcher married Una Puckett, one of the daughters of said Martha E. Puckett. After their marriage they moved into an old house on said 191-acre tract, and lived in it for about three years. While they were living there, Martha E. Puckett and her husband, John W. Puckett, told Marion Belcher and Una Belcher that, if they wanted to build at the old house place, they could do so, and they would give them an acre of land, and "when they made the divide they would give" them their part of the 191 acres, 18 acres more, around the house.

The acre was to include the old house and the site near by upon which Marion Belcher afterwards built; but the boundaries of the acre were never more accurately determined or laid off, and no deed or written contract was executed by Martha E. Puckett to Marion Belcher and/or Una Belcher for any part of said 191-acre tract of land.

In 1924, Marion Belcher purchased the materials and by his own labor and at his own expense built, near said old house, a six-room, one story, frame dwelling, into which he moved and in which he was living at the time it was destroyed by fire.

In April, 1929, after having spoken to Marion Belcher about taking out insurance through him on said dwelling and the personal property therein, Mullins saw Mr. John W. Puckett and told him he was going up to see Marion Belcher about writing him this insurance, and asked him if the title to Marion Belcher's property was in Marion Belcher or his wife, or both. Mr. Puckett told him the title was in Martha E. Puckett, but that he and his wife intended to give Marion Belcher and his wife an acre of land including his house site, but that they had not made a deed to them for it.

On April 20, 1929, Mullins went to the home of Marion Belcher, and there procured from him an application for $3,500 fire insurance on his said dwelling and $500 on his furniture, etc., therein, which he mailed to Tazewell Insurance Agency, Inc., Tazewell, Va. While the application is addressed to Clinch Valley Insurance Agency, Inc., that fact is immaterial here. This application reads as follows:

"4-26-29

"Clinch Valley Insurance Agency, Inc., Tazewell, Virginia

"Dear Sirs: The following application is presented for your careful consideration for insurance against loss or damage by fire on the property specified below.

"Respectfully,

"[Signed] J. C. Mullins.

"Insurance is Wanted "1/4 Mile from Station

"By Marion Belcher of Southern Haysi, in the sum of $3,500 on six-room dwelling and $500 on furniture. Want this contract for three years, rate advised 98 cts. to $1.00 per hundred.

"If owner or occupant is negro or foreigner advise fully. American, White.

["Signed] Marion Belcher."

On the back of the application, under the heading "Questions to Agents, " appear, among others, the following questions, the answers to which are in the handwriting of J. C. Mullins:

"What is the present cash value? $4,500.

"What is nature of title? Good.

"Is the property occupied by owner or tenant? Owner.

"Do you unqualifiedly recommend both the risk and the assured? Yes."

Mullins filled out the answers to "Questions to Agents" at the time the application was signed by Marion Belcher from information given him by Belcher. When Mullins reached the question, "What is the nature of title?" he asked Belcher, "How the title was, " and "If the title was good." Belcher said. "Yes, " and then explained to Mullins that Martha E. Puckett and her husband had given the acre of land on which the house stood to him and his wife, but had not made them a deed for it.

In the course of this conversation about the title to the property, Mullins told Marion Belcher that he (Mullins) had been talking to John W. Puckett about the title to the property, and it would be all right for him to take out insurance...