Va. Fire & Marine Ins. Co v. Morgan.1

• Decision Date: 09 November 1893
• Citation: 90 Va. 280,18 S.E. 191
• Court: Virginia Supreme Court
• Parties: VIRGINIA FIRE & MARINE INS. CO. v. MORGAN.1

18 S.E. 191

90 Va. 280

VIRGINIA FIRE & MARINE INS. CO.

v.MORGAN.¹

Supreme Court of Appeals of Virginia.

Nov. 9, 1893.

Conditions of Policy — Ibon Safe Clause—Parol Evidence.

1. A policy of fire insurance contained a clause that it was based upon a written application, the statements in which should be treated as warranties. In the application the insured was asked whether he would keep his books of account in an iron safe or secure in another building, to which the answer was, "Yes." Held, that this statement was a warranty, and, unless the books were kept as stated, there could be no recovery under the policy.

2. A policy of fire insurance recited that the same "shall be void if the assured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning this insurance, or the subject thereof, " and also, "This policy is made and accepted subject to the foregoing stipulations and conditions." Held, that this clause would not permit the court to inquire into the materiality of a warranty.

3. An insured, who cannot read the English language, will not be allowed, in the absence of fraud, to testify that when he signed an application for insurance, a*greeing to keep his books in an iron safe, that he was not ques tioned on the subject, and that It was filled up by the agent of the company, who did not read the answers and questions to him.

Error to judgment of the circuit court of Tazewell county, rendered at the August term, 1892, In an action on a policy of fire insurance, wherein Samuel Morgan was plaintiff and the Virginia Fire & Marine Insurance Company was defendant. The policy was for $1,500 on a stock of goods. The jury found a verdict for the plaintiff for $1,090.90, and there was judgment accordingly, to which judgment the defendant obtained a writ of error and supersedeas. Reversed.

Opinion states the case.

Chapman & Gillespie and W. W. & B. T. Crump, for plaintiff in error.

Henry & Graham, for defendant in error.

LEWIS, P. This was an action on a policy of fire insurance issued by the defendant company on the plaintiff's stock of goods in his storehouse at Cedar Bluff, in Tazewell county, Va. The policy recites that it is based upon the written application signed by the assured, and that "the said application, shall be treated as a part of and be incorporated in the policy, and that the statements thereof shall be treated as warranties by the assured that the facts therein stated are true." In the application the assured was asked the following, among other, questions, viz.: "State what books of account you keep. Will you keep them in an iron safe, or secure in another building?" To which the answer was: "Day book and ledger. Yes." The goods having been destroyed by fire, the company refused payment on the ground that the assured had not kept his books in an iron safe, or secure in another building, but had kept them in a wooden desk in the storehouse, where they were destroyed in the fire. This defense was also set up in bar of the action under the plea of nonassumpsit; and at the trial the court was asked in effect to Instruct the jury that the answer in the application in regard to the place of keeping the books amounted to a continuing warranty, which, If broken, avoided the policy. But the court refused to so charge, and on motion of the plaintiff told the jury in effect that before they could consider the agreement in regard to the books they must believe it was material, and, further, that the company was injured by its nonobservance. This ruling was seemingly based on the idea that the agreement was not a warranty, but a representation, which is a mistaken view. The stipulation is undoubtedly a warranty, made so by the express contract of the parties, and the jury ought to have been instructed that a literal compliance with it was essential to a recovery by the plaintiff. "An express warranty, " says May, "is a stipulation inserted in writing on the face of the policy, on the literal truth or fulfillment of which the validity of the entire contract depends. By a warranty the insured stipulates for the absolute truth of the statement made and the strict compliance with some promised line of conduct upon penalty of forfeiture of his right to recover in case of loss should the statement prove untrue, or the course of conduct promised be unfulfilled. A warranty is an agreement in the nature of a condition precedent, and, like that, must be strictly complied with." May, Ins. § 156. This is the language of the decided cases and of this court in Insurance Co. v. West, 76 Va. 575. And the author correctly adds that whether the fact stated or the act stipulated for be material to the risk or not is of no consequence, the contract being that the matter is as represented, or shall be as promised, and unless it prove so, whether from fraud, mistake, negligence, or other cause, not proceeding from the insurer or the intervention of the law or the act of God, the insured can have no claim. "One of the very objects of the warranty, " he continues, "Is to preclude all controversy about the materiality or immateriality of the statement. The only question is, has the warranty been kept? There is no room for construction; no latitude; no equity. If the warranty be a statement of facts, it must be literally true; if a stipulation that a certain act shall or shall not be done, it must be literally performed." Whether a statement is a warranty or not depends upon the intention of the parties, as does the...