Union Assur. Soc. Of London v. Nalls

• Decision Date: 18 June 1903
• Parties: UNION ASSUR. SOC. OF LONDON, ENGLAND. v. NALLS.
• Court: Virginia Supreme Court

44 S.E. 896

101 Va. 613

UNION ASSUR. SOC. OF LONDON, ENGLAND.

v.NALLS.

Supreme Court of Appeals of Virginia.

June 18, 1903.

INSURANCE—UNCONDITIONAL OWNERSHIP— MORTGAGE.

1. The existence of a mortgage does not violate the condition of a policy that the interest of the insured in the property shall be "unconditional and sole ownership."

¶1. See Insurance, vol. 28, Cent. Dig. § 613.

2. Where an insurance company elects to issue a policy of insurance against loss by fire without any application, or without any representation in regard to the title to the property, it cannot complain, after loss has ensued, that the interest of the insured was not correctly stated in the policy, or that an existing incumbrance was not disclosed.

Error to Corporation Court of Roanoke.

Action by C. M. Nails against the Union Assurance Society of London, England. Judgment for plaintiff. Defendant brings error. Affirmed.

Watts, Robertson & Robertson, for plaintiff in error.

Scott & Staples and Cocke & Glasgow, for defendant in error.

WHITTLE, J. This is an action of assumpsit on a policy issued by the plaintiff in error, insuring the machinery and stock in the canning factory of the defendant in error, situated in the city of Roanoke, against loss by fire, to the amount of $5,000.

The jury found a verdict for the plaintiff for $4,084.86, with interest. Whereupon the defendant moved the court to set aside the verdict, and for a new trial, upon the ground that the verdict was contrary to the law and the evidence, and that the court, by its instructions, had misdirected the jury as to the law. The motion was overruled, and judgment rendered upon the verdict, which judgment is now here for review.

The plaintiff in error denies liability on two grounds: First, because the interest of the insured in the property covered by the policy was other than an unconditional and sole ownership; and, second, because the subject of insurance was personal property, and, at the time of the issuance of the policy, was incumbered by a chattel mortgage.

The conditions of the policy upon which these defenses are based are as follows:

"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * If the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be personal property, and be or become encumbered by chattel mortgage."

Both contentions rest upon the fact that at the time the policy was taken out there was a deed of trust or chattel mortgage on the property covered thereby.

The insurance was effected through the medium of the Century Banking & Deposit Company, a company conducting a regular Insurance agency in the city of Roanoke, which received the premium and delivered the policy.

It is insisted that in placing this particular risk the company acted in the capacity of insurance brokers, and not as the agent of the insurance company; and the secretary and treasurer of the Century Banking & Deposit Company and the general agent of the insurance company at Richmond both testified to that effect. Nevertheless the fact remains that the insured sought and obtained the insurance from that company, and was not advised of any limitations on their powers as representatives of the insurance company. As, however, the case will have to be disposed of on other grounds, it is unnecessary to decide what relation the intermediary bore to the contracting parties. See, on that subject, Queen Ins. Co. of America v. Union Bank & Trust Co., 111 Fed. 697, 49 C. C. A. 555; 2 Beach on Ins. § 1326.

The policy was issued without the usual printed or written application, and there wasno representation made, or required to be | made, by the insured, either as to the character of his title or interest in the property, or as to the existence of any deed of trust or chattel mortgage thereon.

As observed, the only representative of the insurance company known to the insured, or with whom he came in contact or had any dealings in respect to the insurance, was the Century Banking & Deposit Company, which company was fully informed of the state of his title, and had actual knowledge of the deed of trust on the property, before and at the time of the payment of the premium and delivery of the policy. There was no evidence tending to show a fraudulent concealment of the incumbrance, nor is there any suggestion of bad faith on the part of the insured.

On the 2Cth of January, 1901, a fire occurred, which occasioned a total loss of the property; and the appraisers fixed the proportion of the loss to be borne by the plaintiff in error at $4,084.86,...