Spicer v. Hartford Fire Ins. Co. Of Hartford

Citation199 S.E. 499
PartiesSPICER. v. HARTFORD FIRE INS. CO. OF HARTFORD, CONN., Inc.
Decision Date21 November 1938
CourtSupreme Court of Virginia

Error to Circuit Court, Culpeper County; Alexander T. Browning, Judge.

Action by George W. Spicer against the Hartford Fire Insurance Company of Hartford, Conn., Inc., to recover on a fire policy. A verdict for plaintiff was set aside and to review a judgment for defendant, plaintiff brings error.

Affirmed.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Robert E. Scott, of Richmond, and Burnett Miller and E. E. Johnson, both of Culpeper, for plaintiff in error.

Alexander H. Sands and Alexander H. Sands, Jr., both of Richmond, for defendant in error.

HUDGINS, Justice.

George W. Spicer instituted this action against the Hartford Fire Insurance Company, of Hartford, Conn., to recover, on an insurance policy, for the loss of a dwelling and personal property destroyed by fire. The jury returned a verdict for plaintiff, which the trial court set aside, and entered judgment for defendant. To that judgment plaintiff obtained this writ of error.

The insurance contract in question was issued on July 29, 1935, to extend for five years, in consideration of $31.12, paid in cash, and a note signed by plaintiff for $124.48, payable in four annual installments. The amount of the policy totaled $5,300; $2,400 of which was on the residence, $600 on the personal property, and $2,300 on outbuildings. In 1914 plaintiff acquired the 150 acres of farm land in Culpeper county, on which the property insured was located, and for fifteen years or more he kept this property insured with defendant.

On May 29, 1936, the residence and its contents were destroyed by fire. The agent, R. E. Fifield, was notified, and a few days thereafter, he, and one J. R. Loyd, an adjuster for the Fire Companies Adjustment Bureau, visited the scene. The adjuster and plaintiff agreed on the value of the building and personal property destroyed. This agreement was reduced to writing, and it shows that the agreed value of the residence was $2,902.46, and the agreed value of the personal property was $740.70. At this conference, which lasted for several hours, nothing was said by either party about the ownership of the property or other insurance thereon. Fifield told plaintiff he would receive a check for three-fourths of the amount of the loss within a few days. Due to other information later received, the company declined to make settlement.

The policy contains the usual conditions and restrictions required by sec. 4305a of the Code, and is in the form "known and designated as the 'Standard fire insurance policy of the State of Virginia.'" The pertinent provisions of the policy are:

"This entire policy shall be void, unless otherwise provided by agreement in writing added hereto, (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple; or (c) if, with the knowledge of the insured, foreclosure proceedings be commenced or notice givenof sale of any property insured hereunder by reason of any mortgage or trust deed.

"Unless otherwise provided by agreement in writing added hereto this Company shall not be liable for loss or damage occurring (a) while the insured shall have any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy."

Plaintiff contends that these conditions and restrictions in the policy are void because they are not printed in type as large as brevier, or 8-point, as required by Code sections 4227 and 4227a. One witness for plaintiff stated that, in his opinion, the size of type used was less than 8-point. Two witnesses for defendant stated that by actual measurement the type was 8-point.

When the evidence is conflicting on an issue of fact, the finding of a jury is binding upon a court; but, when the question at issue involves the simple application of a universally accepted standard to determine the result, it is the duty of the court to disregard the finding of a jury when its finding is to the contrary. An inch is the American standard of linear measure. A line extending twelve inches is a foot. No testimony denying this accepted fact is permissible to support a verdict contrary to that standard of measurement. A like standard, while it may not be so generally known, is now used in ascertaining the size of type. The new Webster's International Dictionary is recognized as a standard to ascertain the etymology, pronunciation and definition of words. This authority states that the point system of measuring type is "a system according to which the various sizes of type bodies, leads, etc, bear a fixed and simple relation to one another." It was adopted in 1886 by the United States Type Founders' Association, although prior to that time many founders were using it. "It is a modification of a French system, and is based upon the pica body then most used. This body is divided into twelfths called 'points, ' and every type body consists of a given number of these points * * *. The value of the point is.013837 inch, or nearly inch."

The difference between the size of 7-point type (the size plaintiff claims the type in question is) and 8-point type, is 1/72 of an inch. This variation in size is difficult, if not impossible, to detect with the naked eye. The original policy, with the printed conditions and restrictions, is a part of the record before this court. The ques tion of fact is whether the letters measure 8/72 of an inch from top to bottom. Applying the standard rule of measuring type to the print, the result is conclusive that the size of the type is 8-point, or brevier, the minimum size type that conditions and restrictions in a fire insurance policy are authorized by statute to be printed.

The evidence discloses this situation: Title to the 150 acres of land was in the name of George W. Spicer and M. F. Spicer, his wife. Prior to July, 1935, plaintiff, unknown to defendant, had purchased through Fred Hudgins, an agent for the Continental Insurance Company of New York, $1,700 insurance on the same building and $500 insurance on the same personal property, in the name of himself and wife, with a standard mortgage clause attached to the policy for the benefit of the mortgagee, the Federal Land Bank of Baltimore. On July 27, 1935, R. E. Fifield, agent for defendant, called by plaintiff's home to obtain a renewal, or a new application for another policy, on the same property. Plaintiff stated to defendant's agent that he desired to renew or reinsure the property. The question arose as to the insurable value. The agent stated that $2,400 was too much for the building unless the porch was repaired and the house painted. The agent, with the understanding that the porch would be rebuilt, requested plaintiff to sign a blank application and stated that he would write the information desired on the application after he returned to his office. Plaintiff testified that the only question asked him by the agent was to whom to make the policy payable, and that he replied, "you make it payable to me and my wife, the same as Mr. Hudgins." At that time plaintiff was indebted to the Federal Land Bank of Baltimore, on one loan, in the sum of $2510.38, and had paid no interest thereon since December 1, 1931. He owed the same creditor approximately $500 on a smaller loan, on which no interest had been paid since January 24, 1933. Both of these debts were secured by mortgages on the premises.

In the blank application the limitation of the agent's authority is expressed in these words: "The foregoing is my own agreement and statement, and is a correct description of the property on which indemnity is asked, and I hereby agree that insurance shall be predicated on such statement, agreement, and description, if this Application is approved, and that the fore-going shall be deemed and taken to be promissory warranties running during entire life of said policy. * * *. This company shall not be bound by any act done or statement made by or to any agent or other person which is not contained in this, my Application."

The, application contains the following questions in print, and the answers filled in by the agent:

"1. Are you the sole and absolute...

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3 cases
  • Stand Up for Democracy v. State
    • United States
    • Michigan Supreme Court
    • 3 Agosto 2012
    ...(1960), p. 652 (“The value of the point is .013837 inch, or nearly 1/72 inch.”), and Spicer v. Hartford Fire Ins. Co., 171 Va. 428, 432, 199 S.E. 499 (1938) (“An inch is the American standard of linear measure.... A like standard, while it may not be so generally known, is now used in ascer......
  • New Hampshire Fire Ins. Co. of Manchester v. Boler, 2138
    • United States
    • Wyoming Supreme Court
    • 6 Mayo 1940
    ... ... Co. v. Hudson, 11 F.2d 961; Pollock v. Connecticut ... Fire Insurance Co. of Hartford, 362 Ill. 313, 199 N.E ... 816. Defendants in error concede that this is the rule for ... they ... loss through fire, insist upon the forfeiture of the ... In ... Spicer v. Hartford Fire Insurance Co. of Hartford, ... Conn., 171 Va. 428, 199 S.E. 499, where a fire ... ...
  • Barry v. Tyler
    • United States
    • Virginia Supreme Court
    • 21 Noviembre 1938

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