Va. Fire & Marine Ins. Co v. Goode

• Decision Date: 07 April 1898
• Citation: 95 Va. 762,30 S.E. 370
• Court: Virginia Supreme Court
• Parties: VIRGINIA FIRE & MARINE INS. CO. v. GOODE et al.

30 S.E. 370

95 Va. 762

VIRGINIA FIRE & MARINE INS. CO.

v.GOODE et al.

Supreme Court of Appeals of Virginia.

April 7, 1898.

Insurance—Proofs op Loss —Waiver —Denial op Liability—Breach op Conditions— Declarations of Agent.

1. Proof of loss was made and forwarded to an insurance company, which acknowledged receipt by stating that the proof was unsatisfac tory, without indicating any defects. Held, a failure to specify defects was a waiver thereof.

2. The denial of an insurance company of all liability on a policy, without giving the reasons therefor, absolves the insured from any obligation to furnish preliminary proofs of loss, or to correct any defects if proof has already been furnished.

3. An application for insurance contained a question, "Will you agree to keep a reliable person in the building at all times?" The insured informed the agent that he generally slept in the building, but was occasionally absent. The agent replied that the company did not expect that one should sleep there every night. The building was destroyed at night in the absence of insured. Held, that the company was estopped from asserting a forfeiture because no one was sleeping in the building, although the statements made by its agent were not communicated to it.

4. Evidence as to what passed between an agent and the insured while filling out an insurance policy is admissible when offered, not to contradict the policy, but to show that a representation therein ought not to operate as an estoppel.

Appeal from circuit court, Fauquier county.

Action by W. B. Goode & Co. against the Virginia Fire & Marine Insurance Company. Judgment for plaintiffs. Defendant appealed. Affirmed.

J. A. C. Keith, R. C. Scott, J. V. Brooke, and B. T. Crump, for appellant.

Jeffries & White, for appellees.

RIELY, J. The questions arising upon the writ of error awarded in this case are, with few exceptions, the same that were disposed of in the case of Insurance Co. v. Goode (just decided) 30 S. E. 366. It will therefore be only necessary to decide those not arising in that case, and refer to it for the proper disposition of the questions common to both cases, for, although that case was before us upon a demurrer to the evidence, and this case is before us upon a motion for a new trial, the same principles govern us in their consideration and disposition. Code Va. § 3484.

The plaintiffs were the same in both cases, and the evidence shows that the applications for insurance were taken by the same person, at the same time, upon the same stock of goods, and that the recovery sought in each case was for the loss caused by the same fire. And upon a comparison of the evidence, so far as it relates to the questions common to both cases, there was no material difference.

In regard to the claim of a variance between the allegations of the declaration and the proof upon the issue of partnership and the objection that the aggregate amount of the recovery exceeded the damages laid in the declaration by reason of the allowance by the jury of interest on the amount assessed as damages, it is sufficient to refer to what was said in respect thereto in that ease.

It was urged as an obstacle to a recovery in this case that the preliminary proof of loss was not furnished as required by the terms of the policy.

It appears from the evidence that a blank form of proof of loss was sent to the plaintiffs by the defendant company, which they filled up, swore to, and returned to the company. Its receipt was acknowledged by the company, but in its letter acknowledging the receipt it simply stated, without pointing out any defects, that the proof was "not made up in conformity with the policy contract, and was not satisfactory." It was obligatory upon the company to specify the defects, and its failure to do so was a waiver of any objection to the proof of loss. 2 May, Ins. (3d Ed.) §§ 468, 469b.

The plaintiff A. M. Wright testified that shortly after the company acknowledged the receipt of the proof of loss its adjuster, R. F. Johnson, came to Calverton, the place where the plaintiffs had conducted their business prior to and at the time of the fire, and sent for the witness, who was at his home, about two miles off; that he talked with Johnson, exhibited to him their books, the inventory, and such duplicate invoices as they had been able to procure, and told him all the facts and circumstances in connection with the issuing of the insurance; and that immediately thereafter they received a letter from the company, denying the liability, and declining to pay the loss. It is well established that a denial of all liability under the policy, without giving reasons, absolves the insured from any obligation to furnish preliminary proof of loss, or to correct defects in it if it has been furnished. In such case it would be but an idle formality, which the law will not require to be performed. 2 May, Ins. § 469; Richards, Ins. § 81; Insurance Co. v. Reynolds, 32 Grat. 613; and Insurance Co. v. Sheets, 26 Grat. 854.

The nineteenth question contained in the application was in these words: "Will you agree to keep a reliable person in the building at all times? State name of such person at present, "—to which the following reply was made: "Answer: W. B. Goode. Sleeps in building."

It appears from the evidence that when the application was being filled up, and the answer to the above question had to be given, the soliciting agent, Robert E. Harris, was...