Spicer v. Hartford Fire Ins. Co., Record No. 1976.

• Decision Date: 21 November 1938
• Docket Number: Record No. 1976.
• Parties: G. W. SPICER v. HARTFORD FIRE INSURANCE COMPANY, HARTFORD, CONN., INC.
• Court: Virginia Supreme Court

Page 428

171 Va. 428

G. W. SPICER v. HARTFORD FIRE INSURANCE COMPANY, HARTFORD, CONN., INC.

Record No. 1976.

Supreme Court of Virginia, Richmond.

November 21, 1938.

Present, All the Justices.

VERDICT — Conclusiveness — Where Question Involves Simple Application of Universally Accepted Standard. — 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.

2. WORDS AND PHRASES — Point System of Measuring Type. — 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."

3. FIRE INSURANCE — Conditions and Restrictions in Policy — Conclusiveness of Verdict as to Size of Type Used — Case at Bar. — In the instant case, an action on a fire insurance policy, plaintiff contended that certain conditions and restrictions in the policy were void because they were not printed in type as large as brevier, or eight point, as required by sections 4227 and 4227a of the Code of 1936. One witness stated that the size of type used was less than eight point, while two stated that it was eight point. The jury returned a verdict for plaintiff, which was set aside by the trial court.

Held: That the question of fact was whether the letters measured 8/72 of an inch from top to bottom, and applying the standard rule of measuring type to the print, which was a part of the record before the Supreme Court of Appeals, the result was conclusive that the type was eight point, the minimum size permissible under the statute, and the verdict of the jury was properly set aside.

4. INSURANCE — Agents — Knowledge by Assured of Limitations on Agent's Powers. — An insurance company will not be heard to say that an agent of their own selection has exceeded his powers, and has not communicated to them facts made known to him by the assured, unless it can be shown that special limitations upon the powers of the agent are known to the assured, or plainly appear from the nature of the agent's employment.

5. FIRE INSURANCE — Standard Policy — Purpose of Section 4305a of the Code of 1936. — The purpose of section 4305a of the Code of 1936, prescribing a standard fire insurance policy, and requiring its use, is to assure in all cases a fair and equitable contract of insurance between the parties, and not to cut off estoppels designed to prevent fraud or imposition, which before its enactment had been enforced by the courts in cases in which the policy in question contained the same provisions as those which are contained in the standard policy prescribed by the act.

6. FIRE INSURANCE — Standard Policy — Unconditional and Sole Ownership — Assured Bound by Policy Provisions in Absence of Waiver or Estoppel. — An assured accepting a fire insurance policy in which are included the standard provisions as to the title and interest of the assured, is bound thereby, unless the insurer by a binding waiver or by virtue of an estoppel is precluded from relying thereon, or upon the specific breach thereof.

7. STATE DECISIS — When Applicable. — Where the facts in the case at bar are not distinguishable from the facts in an earlier case, the doctrine of stare decisis applies and is controlling.

8. FIRE INSURANCE — Agents — Knowledge by Assured of Limitations on Agent's Powers — Case at Bar. — In the instant case, an action to recover upon a fire insurance policy containing the standard provisions in regard to the interest and title of the assured, and against other insurance, the evidence showed that title to the insured property was in the name of the assured and also his wife and that assured had purchased other insurance through the agent of another company. Plaintiff testified that he told the agent of defendant company to make the insurance payable to himself and his wife in the same manner as the agent of the other company had made the insurance payable, and contended that defendant company was estopped to deny the falsities in the statement of the application and the breach of the conditions stated in the policy since the statement to its agent imputed knowledge to defendant that plaintiff did not own the land in fee, and that there was additional insurance on the property. The application blank which plaintiff signed contained a provision that the company would not be bound by any act done or statement made by or to any agent not contained in the application.

Held: That, since plaintiff had knowledge through the application blank of the agent's limited authority, there was no merit in his contention.

9. INSURANCE — Construction of Policy — Valid Provisions Cannot Be Disregarded. — The Supreme Court of Appeals has gone as far as any court in enforcing insurance policies in favor of the assured, and resolving all fair doubts in favor of the assured in such cases, but this proper rule cannot be so extended as to disregard valid provisions of the contract.

10. FIRE INSURANCE — Standard Policy — Provision Avoiding Policy if Foreclosure Proceedings Shall Be Commenced. — The provision of the standard fire insurance policy, that the policy shall be void if, with the knowledge of the assured, foreclosure proceedings be commenced, is valid, wise in its purpose, clear in meaning, in the interest of the public, and expresses and constitutes the contract.

11. FIRE INSURANCE — Provision Avoiding Policy if Foreclosure Proceedings Be Commenced — Sufficiency of Knowledge of Commencement — Case at Bar. — In the instant case, an action on a standard fire insurance policy containing the provision that it should be void if, with the knowledge of the assured, foreclosure proceedings were commenced, it was conceded that three days before the fire plaintiff and his wife were served with process by a bank holding two mortgages upon the property, upon which plaintiff had paid no interest for many years, and that plaintiff had received a letter stating that the bank would take necessary legal steps to protect its interest. Plaintiff contended that he did not know that the service of process upon him was the beginning of foreclosure proceedings.

Held: That, under the circumstances, this disclaimer of knowledge could not be accepted.

Error to a judgment of the Circuit Court of Culpeper county. Hon. Alexander T. Browning, judge presiding.

The opinion states the case.

Robert E. Scott, Burnett Miller, Sr., and E. E. Johnson, for the plaintiff in error.

Alexander H. Sands and Alexander H. Sands, Jr., for the defendant in error.

HUDGINS, J., delivered the opinion of the court.

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 out-buildings. 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 section 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 given of 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 eight-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 eight-point. Two witnesses for defendant stated that by actual measurement the type was eight-point.

1, 2 When the evidence is conflicting on an...