Scholz v. Standard, Etc., Co.

• Decision Date: 23 September 1926
• Citation: 145 Va. 694
• Court: Virginia Supreme Court
• Parties: SCHOLZ v. STANDARD ACCIDENT INSURANCE COMPANY.

Page 694

145 Va. 694

SCHOLZ v. STANDARD ACCIDENT INSURANCE COMPANY.

Supreme Court of Virginia, Wytheville.

September 23, 1926.

Absent, West, J.

1. EXCEPTIONS, BILL OF — Notice to the Opposite Party or his Attorney — Validity of Bill of Exceptions — Section 6252 of the Code of 1919, as Amended by Act of 1924, Page 62. — Section 6252 of the Code of 1919, as amended by act of 1924, page 62, providing that, before the court or judge in vacation shall sign a bill of exceptions, it shall appear in writing that the opposite party or his attorney has had reasonable notice of the time and place at which the bill of exceptions was to be tendered to the court or judge, is an important statute, and compliance with it is necessary to the validity of the bill of exceptions.

2. EXCEPTIONS, BILL OF — Notice to the Opposite Party or His Attorney — How Compliance with Section 6252 of the Code of 1919, as Amended by Acts of 1924, Page 62, Should be Shown. — Properly, the bill of exceptions or the order granting it should show compliance with section 6252 of the Code of 1919, as amended by Acts 1924, page 62, as to notice to the opposite party or his attorney, but the statute is silent on the subject and the practice in this respect has not been uniform. But it is plain that what was to "appear in writing" was to appear to the trial court or judge who was to act on it. The manner of showing this is a matter of form.

3. EXCEPTIONS, BILL OF — Notice to the Opposite Party or His Attorney — How Compliance with Section 6252 of the Code of 1919, as Amended by Acts of 1924, Page 62, Should be Shown — Case at Bar. — In the instant case it appeared from the affidavit of the trial judge, which was in no way questioned, that the notice of the time and place of the tendering of the bill of exceptions, required by section 6252 of the Code of 1919, as amended by Acts of 1924, page 62, to be given the opposite party or his attorney, was given; that opposing counsel was present and the propriety of signing the bill of exceptions was decided on its merits.

Held: That to ignore these facts because not stated in the bill of exceptions, and the notice and return thereon were not formally made parts of the record, would be to sacrifice substance to form, which is forbidden by section 6331 of the Code of 1919.

4. EXCEPTIONS, BILL OF — Notice to Opposite Party or His Attorney — How Compliance with Section 6252 of the Code of 1919, as Amended by Acts of 1924, Page 62, Should be Shown. — Section 6252 of the Code of 1919, as amended by acts of 1924, page 62, does not require the notice of the time and place of tendering a bill of exceptions to the court or judge, to be made a part of the record, but simply that it shall be made to "appear in writing" to the trial court or judge that the notice was given. If the notice was in fact given, that fact may be established in some satisfactory manner, as by certificate of the trial judge, or by affidavit.

5. EXCEPTIONS, BILL OF — Notice to Opposite Party or His Attorney — Section 6252 of the Code of 1919, as Amended by Acts of 1924, Page 62, is to be Construed with Other Sections of the Code — Case at Bar. — Section 6252 of the Code of 1919, as amended by Acts of 1924, page 62, providing for notice to the opposite party or his attorney of the time and place of tendering a bill of exceptions to the judge or court, is a section of the Code of 1919 which was a general revision of the entire statute law of the State, and must be construed along with other sections of the Code so as to make them harmonize, if possible. The provision as to giving the notice is substantial and material and cannot be minimized or ignored, but the manner of evidencing this fact, or of making up the record for appeal, is purely formal. In the instant case it would violate the spirit if not the letter of section 6331 of the Code of 1919, forbidding reversals where it appears that the parties have had a fair trial on the merits and substantial justice has been reached, to reverse the judgment for failure to comply with section 6252 of the Code of 1919, as amended by Acts of 1924, page 62, where it appeared from an affidavit of the judge that the notice required by that act had been given.

6. INSURANCE — Provisions in Policy in Conflict with the Statutory Provision. — Where a policy of insurance contains provisions in conflict with statutory provisions of the place of contract, it is well settled that the statute will prevail.

7. INSURANCE — Rates or Classification of Risk Filed with the Commissioner of Insurance — Compliance with Section 4315 of the Code of 1919 — Paragraph A of the Standard Provisions. — Paragraph A of "Standard Provisions" regarding filing with State officials of the premium rates and classification of risks is a full compliance with section 4315 of the Code of 1919, and in the instant case, an action on an accident policy, the policy is to be construed according to its terms, and "the premium rates and classification of risks mentioned in this policy shall mean only such as have been last filed by the company in accordance with such law.

8. INSURANCE — Renewal of Policy — Date of Expiration Given — Time of Payment of Premium — Case at Bar. — In the instant case, an action on an accident policy, the renewal receipt continued the policy in force from May 6, 1923, to May 6, 1924. The insured died June 25, 1924. The plaintiff claimed that the renewal premium was not paid until July 10, 1923, and that such payment continued the policy in force from July 10, 1923, to July 10, 1924. The policy provided that any premium paid to the company for any period not covered by the policy would be returned upon request. If an excess premium was paid that did not render the policy void but subjected the company to a penalty under section 4320 of the Code of 1919. The renewal receipt and not the amount of the premium paid fixed the duration of the risk.

Held: That the policy had expired at the time of the death of the insured.

9. INSURANCE — Renewal of Policy — Date of Expiration Given — Time of Payment of Premium — Case at Bar. — Reading a policy for accident insurance and renewal receipt therefor together as component parts of the contract, it appeared that the insurance company contracted that, in consideration of $150, the policy "was continued in force for twelve months from noon, standard time, of the 6th day of May, 1923, to noon, standard time of the 6th day of May, 1924," and that the parties agreed that any premium paid for any period not covered by the policy should be refunded by the company upon request.

Held: That the parties might validly so agree and their contract was not for any extension of the risk beyond May 6, 1924, but for a refund of the excess of premium, if any.

10. WITNESSES — Transactions with Deceased Persons — Corroboration Under Section 6209 of the Code of 1919 — Insurance Agents. — A mere agent of an insurance company, having no interest in the controversy, although the insured is dead, was a competent witness at common law and does not require corroboration under section 6209 of the Code of 1919 as to transactions between the agent and the insured in regard to the policy sued upon.

11. INSURANCE — Renewal of Policy — Agent Undertaking to Carry Insured — Case at Bar. — In the instant case, an action on an accident policy, the renewal receipt continued the policy in force from May 6, 1923, to May 6, 1924. The insured died June 25, 1924. The plaintiff claimed that the renewal premium was not paid until July 10, 1923, and that such payment continued the policy in force from July 10, 1923, to July 10, 1924. Defendant company claimed that the policy was in force from May 6, 1923. The agent of defendant, through whom the policy was taken out, testified that he had agreed with insured to carry the policy for him and give him credit and that the company charged his firm with the amount of the renewal receipt and that insured became liable to his firm for the amount. The renewal receipt was not delivered to insured but the agent testified that he would have delivered it to him if he had asked for it.

Held: That if insured had died between May 6, 1923, and July 10, 1923, under this evidence the company would have been liable and therefore the policy had expired at the time insured died, June 25, 1924.

12. INSURANCE — Strict Construction. — Insurance policies are prepared by the insurers, and in cases of doubt or uncertainty are construed most strongly against them.

13. INSURANCE — Renewal of Policy — Authority of Agents — Countersigning Payment of Premiums. — Agents of the insurer were provided with policies which they could issue without referring them back to the company, and were also provided with renewal receipts duly executed by the company, and were authorized to collect the amounts called for by the receipts and to countersign the same. The countersigning was necessary to insure their authenticity, but if the money was actually and duly paid to the agents, the insurer was liable in like manner as if the receipt had been duly countersigned. The delivery to the agents of the renewal receipts, duly executed, was sufficient evidence of the consent of the company to the renewal of the policy, and if the premium was paid by or for the assured that was a sufficient compliance with the provisions of the policy that "this policy may be renewed with the consent of the company, and by the payment of the premium."

14. INSURANCE — Payment of Premium — Agent Carrying Insured — Credit by Agent. — Where not forbidden by the policy, an agent may make a valid contract with an assured to carry the risk for him for a designated time.

15. INSURANCE — Witnesses — Opinion Evidence — Cross-Examination — Witness Asked as to Whether the Insurance Company was Liable. — In the instant case, an action on an insurance policy where the question at issue was the period covered by the policy, the agent who...