Wolonter v. United States Cas. Co
| Decision Date | 17 September 1919 |
| Citation | 101 S.E. 58 |
| Parties | WOLONTER. v. UNITED STATES CASUALTY CO. |
| Court | Virginia Supreme Court |
Error to Corporation Court of Roanoke.
Action by the widow of John Wolonter against the United States Casualty Company. Judgment for defendant and plaintiff brings error. Reversed and rendered.
Broun & Price and Dillard & Dillard, of Bluefield, W. Va., for plaintiff in error.
Robt. H. Talley, of Richmond, for defendant in error.
This is an action on an accident policy to recover for the accidental death of the insured. After all the evidence was introduced, the defendant demurred thereto, and the trial court sustained the demurrer, and entered judgment for the defendant. To that judgment this writ of error was awarded.
The only question in controversy is:
"Was the policy in force at the time of the accident resulting in the death of the insured? "
The policy contains the following provision:
"The company may cancel this policy at any time by written notice delivered to the insured or mailed to his latest address appearing on the company's record with its check for the unearned part, if any, of the premium, but such cancellation shall be without prejudice to any claim arising on account of disability commencing prior to the date on which the cancellation takes effect."
The statute (Acts 1912, p. 137, § 1) provides that accident policies shall, amongst other things, contain the following provision:
"(h) A provision that the policy may be canceled at any time by the company by written notice delivered to the insured or mailed to him at his last address as shown by the records of the company and the tender of the company's check for the unearned portion of the premium. * * *"
The case, stated from the standpoint of a demurrer to the evidence, is as follows:
C. R. Fishburne was the agent of the insurance company in the city of Roanoke to solicit insurance in the company, and on July 21, 1914, he obtained from John Wolonter applications for two policies which were subsequently issued to him and the premiums thereon duly paid. One of these policies wasa sick benefit policy, and the other the accident policy in suit. The claims under the sick benefit policy were asserted and paid. The application for the accident policy was made upon a printed form, with blanks left for information to be furnished by the assured. So much of the form as is necessary for our purpose, with the information indicated by italics, is here inserted.
At the time the application was made, the insured resided outside of the corporate limits of the city of Roanoke, and had neither city nor rural free delivery. Afterwards he moved to 116 East Salem avenue, within the city and mail delivery limits. He gave no orders to the post officials for delivery of his mail at any time. The first claim under his sick benefit policy was adjusted and paid by Fishburne. The second claim under the sick benefit policy was adjusted and settled by an adjuster of the company at Fishburne's office in the city of Roanoke, Va., about the 1st of February, 1915. Prior to this time, and after Wolonter had moved into the city, he obtained a certificate from Dr. Parker as to the character of his sickness for which the claim was to be asserted, and sent it to Fishburne, the agent of the company, by his wife, who is beneficiary in the accident policy and the plaintiff in this action. She then notified Fishburne of their changed residence, and that her husband wished all communications "from Mr. Fishburne and the company with reference to these policies sent to 116 East Salem avenue, Roanoke, Va." Fishburne wrote the address on a slip of paper, and subsequently, when the adjuster arrived, she received, by private messenger, a note from Fishburne, addressed to her at "116 East Salem avenue, Roanoke, Va., " calling her to his office to meet the adjuster and settle the second sick benefit claim. As to what transpired at this meeting, she testified that:
"After we had agreed upon the amount of the settlement, and while Mr. Fishburne was filling out some paper, he asked me, among other questions, for John's address, and I told him, 116 East Salem avenue, Roanoke, Va."
She does not state what this paper was, but says:
On February 8, 1915, the insurance company mailed a notice of cancellation of the policy in suit in New York city, addressed to "John Wolonter, Roanoke, Va." A check for the unearned premium was inclosed with the notice of cancellation. The notice arrived in Roanoke on February 9, 1915, but was not delivered till February 13, 1915, when the plaintiff was informed by Fishburne that the policies had been canceled, and directed her to go to the post office and inquire for the notices. This information was furnished by Fishburne in response to an inquiry by the plaintiff over the telephone, who had been informed by the hospital authorities that the policy in suit had been canceled. Wolonter was mortally wounded on February 12, 1915, and died February 14, 1915.
The two policies hereinbefore referred to were sent from the home office of the company in New York in envelopes addressed to "John Wolonter, Roanoke, Va., care Virginia Bridge & Iron Company, " and were delivered to Wolonter at the bridge company's office. All other letters received by John Wolonter or the plaintiff, from either Fishburne or the insurance company, were addressed to "Roanoke, Va., care of the Virginia Bridge & Iron Company, " and when Fishburne was notified of the changed address, after he had been requested by the company to get the correct address, "he agreed that he and the company would thereafter address all communications with reference to said policies to us at 116 East Salem avenue, Roanoke, Va." Wolonter was a foreigner, and never received any letters from any one except Fishburne or the insurance company. He never received any addressed simply to "Roanoke, Va., " from either Fishburne or the company. On December 30, 1914, the company wrote Wolonter, inclosing blank form for proof of loss under his sick benefit policy. This letter was addressed "John Wolonter, Roanoke, Va., " but was returned "Unclaimed" and "Not in City Directory." Thereupon the company wrote Fishburne, under date of January 11, 1915, notifying him of the return of their letter and requesting him to furnish them with Wolonter's address. Fishburne replied January 20, 1915, promising to endeavor to get the address.
Some of the above statements of fact are contradicted by witnesses for the defendant, but, upon a demurrer to the evidence, the testimony of witnesses for the demurree must be accepted as true, unless inherently incredible or judicially known to be untrue; and if several inferences may be drawn from the evidence, differing in degrees of probability, those most favorable to the demurree must be adopted unless forced, strained, or manifestly repugnant to reason. Horner v. Speed, 2 Pat. & H. 616. This is the penalty imposed for withdrawing the case from the consideration of the jury, who are the proper triers of questions of fact.
The defendant seeks to discredit theplaintiff by proving that one statement made by her was false, and then, applying the rule falsus in uno, to impeach other material statements made by her. Without going into a discussion of the rule and its limitations and qualifications, it is sufficient to say that it is not clearly shown that the statement referred to was not true. The statement referred to is:
This is alleged to have taken place when the adjuster and others were present at Fishburne's office adjusting and settling the second loss under the...
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