Wytheville Ins. & Banking Co v. Teiger.1

• Decision Date: 09 November 1893
• Citation: 90 Va. 277,18 S.E. 195
• Court: Virginia Supreme Court
• Parties: WYTHEVILLE INSURANCE & BANKING CO. v. TEIGER.1

18 S.E. 195

90 Va. 277

WYTHEVILLE INSURANCE & BANKING CO.

v.TEIGER.¹

Supreme Court of Appeals of Virginia.

Nov. 9, 1893.

Fire Insurance — Payment of Premium — Appointment op Agent—Depositions—Notice.

1. The defendant company insured the plaintiff against loss by fire, and delivered the policy to brokers who had placed many policies before for the company, remitting the premiums monthly, and sometimes at longer intervals. The brokers delivered the policy to the plaintiff's agent the day after its issuance, without collecting the premium. Subsequently, and before the loss occurred, the plaintiff paid the premium of $6 to his agent, and the latter sent to the brokers $80, taking a receipt "on account of miscellaneous companies." The agent testified that plaintiff's premium was included in the remittance, which defendant denied. The policy contained a clause that the company should not be liable "until the premium be actually paid." The court instructed the jury that, if the plaintiff's premium was included in the $80, they should find that the same had been paid to the brokers. Held not error.

2. The court also instructed that, if the defendant delivered the policy to the brokers, who delivered it to the agent, who delivered it to the plaintiff, and at no time after the policy was so delivered, and before the fire occurred, did the defendant give the plaintiff notice that it wished to cancel the policy, then they must find for the plaintiff. Held correct.

3. Delivery of a policy without requiring payment of the premiums is a waiver of the condition of prepayment.

4. Where the premium is charged to the agent personally by the company, and the former credits the insured, it is equivalent to payment.

5. When an insurance company clothes a person with apparent authority to deliver policies and receive the premiums, it is estopped after delivery of the policy to set up the defense that the agent acted without written authority, as required by statute.

6. The fact that the plaintiff's attorneys notified the defendant that they would take depositions in Georgia on the same day as other depositions were taken by them in New York will not vitiate either deposition, where the plaintiff is connected with only one of the causes, and the objection is not made until the calling of the case.

7. A motion for continuance is addressed to the discretion of the court, and will not be reversed unless plainly erroneous.

Error to circuit court, Wythe county.

An action of trespass on the case in assumpsit, wherein Samuel Teiger was plaintiff, and the WythevUle Insurance & Banking Company, a Virginia corporation, was defendant. The jury found a verdict for the plaintiff for $798, which the court refused to set aside, and there was judgment accordingly, to which judgment the defendant companyobtained a writ of error and supersedeas.

Affirmed.

F. S. Blair, for plaintiff in error.

Walker & Caldwell, for defendant in error.

LEWIS, P. By the policy sued on, the defendant company insured the plaintiff against loss or damage by fire to the amount of $800 on a stock of goods in a store, at 175 Attorney street, in New York. The company sent the policy for delivery and collection of the premium to Milch, Pleisner & Co., insurance brokers of that city. This firm had placed many policies of the defendant company and received the premiums. Their custom, according to the evidence, was to remit to the company "sometimes once a month, sometimes twice a month, and sometimes once in sixty days, depending upon the amount of premiums collected." The policy sued on was issued on the 1st of December, 1891, and was delivered to the plaintiff's agent a day or two afterwards without payment of the premium. This agent was one Adler, an insurance agent, to whom the plaintiff paid the premium, and who on the 23d of December, 1801, paid to Milch, Pleisner & Co. $80, for which he took their receipt, as follows: "Received from Edward Adler eighty dollars on account of miscellaneous companies." The premium on the plaintiff's policy was $6, which Adler says was included in the payment above mentioned. The goods were destroyed by fire on the 13th of February, 1892. The policy recites that it is issued "subject to the stipulations and conditions of the New York standard form of policy, " and, further, that "this company shall not be liable by virtue of this policy, or any renewal thereof, until the premium therefor be actually paid." In this state of things the main ground upon which the company denies liability is that the premium was not paid.

Upon the question whether the premium was paid to Milch, Pleisner & Co. the circuit court instructed the jury as follows: "If the jury believe that the sum of eighty dollars paid by Adler to Milch, Fleisner & Co., on the 23d December, 1891, embraced the premium in the plaintiff's policy, and that said premium formed part of the said eighty dollars, then the jury will find that the said premium was paid to Milch, Fleisner & Co. on the 23d of December, 1891." Another instruction given at the instance of the plaintiff was as follows: "The court instructs the jury that if they believe from the evidence that the defendant company delivered the policy sued on to Milch, Fleisner & Co., who delivered it to Adler, who delivered it to plaintiff, and further believe that at no time after the policy was so delivered, and before the fire occurred, did the defendant company give the plaintiff notice that it wished to cancel the policy, then they must find for the plaintiff." The first of these instructions although both were excepted to, was clearly right. The defendant denied that the payment of $80 to Milch, Fleisner & Co. embraced the premium on the plaintiff's policy, and the question was therefore properly submitted to the jury. Nor is there anything in the second instruction to the injury of the defendant, although it may be open to some criticism. Its meaning is clear, and the jury could not fail to understand It correctly. The evidence on both sides shows that the policy was sent to Milch, Fleisner & Co. as the defendant's 'agents, so that, if there was an assumption in the fact by the Instruction that Milch, Fleisner & Co. were agents of the defendant, it assumed as a fact what the defendant itself had proved.

The case, on the merits, turns upon the effect of the delivery of the policy by Milch, Fleisner & Co. This firm were not only brokers, but, as just said, they were agents of the defendant Policies were sent to them directly from the home office, the premiums on which th...