Wytheville Ins. & Bkg. Co v. Stultz

• Decision Date: 09 April 1891
• Citation: 13 S.E. 77,87 Va. 629
• Court: Virginia Supreme Court
• Parties: Wytheville Ins. & Bkg. Co. v. Stultz.

13 S.E. 77

87 Va. 629

Wytheville Ins. & Bkg. Co.

v.Stultz.

Supreme Court of Appeals of Virginia.

April 9, 1891.

Fire Insurance—Action on Policy—Service of Process—Evidence—Instructions.

1. The fact that an insurance company also does a banking business does not, in an action on a policy, necessitate the service of process on it in the mode prescribed for service of process on banks; and where the action is brought in the county in which the property was situated, and there is no agent of the company resident in that county, the process may be served by publication, as provided by Code Va. § 3225, for service against corporations generally with the exception of banks.

2. In an action on a policy of fire insurance covering a lot of tobacco, a question propounded by defendant to a witness as to what commission he was to receive if he sold plaintiff's tobacco is properly excluded as irrelevant.

3. An instruction that the insured was bound to disclose every material fact which at the time of the issuance Of the policy would have influenced the company in issuing or refusing it. or which would have induced the demand of a higher rate, is properly refused, as the insured must have knowledge of the existence of the fact or of its materiality before the policy can be avoided for his failure to disclose it.

4. Where the policy contains many questions as to facts deemed by the company material to the risk, the insured is bound to disclose only such matters as may be inquired about by the company; and therefore an instruction that the policy is vitiated by the failure of the insured to disclose the fact that the tobacco was damaged and unsalable when he obtained the policy isproperly refused, where no such inquiry was made by the company.

5. Neither is the insured bound to disclose the particulars of his title unless the same is inquired about, or unless it is made imperative on him by some condition of the policy; and, in the absence of such inquiry or condition, it is proper to refuse an instruction that the policy is vitiated if, at the time of its issuance, the insured owed on the tobacco an amount equal to its value.

6. Where the insured, on his application for the policy, correctly represented the building in which the tobacco was stored as a tobacco factory, an instruction that such representation amounts to a warranty by the insured as to the character of the building is properly refused as misleading.

7. In an action on the policy, defendant's evidence showed that plaintiff misrepresented the character and value of the tobacco, that the tobacco was in fact unsalable, that it was destroyed within nine days after the issuance of the policy, and that plaintiff had offered no explanation, except that he thought that the fire was the work of an incendiary. Plaintiff's evidence showed that he had made no misrepresentations, and that the tobacco was valuable and salable. Held that, on writ of error after a verdict in plaintiff's favor, the supreme court of appeals must reject such of defendant's evidence as is in conflict with that of plaintiff, and that the verdict could not be set aside as contrary to the evidence.

Richardson, J., dissenting.

D. S. Peirce, for plaintiff in error.

Peatross & Harris, for defendant in error.

Lacy, J. This is a writ of error to a judgment of the circuit court of Henry county rendered at the July special term, 1889. The action is trespass on the case in assumpsit against the Wytheville Insurance & Banking Company by the defendant in error, L. B. Stultz, on a policy of insurance. At the trial the defendant moved the court to quash the process, because there had been no personal service on the company in any way whatever, and that the order of publication, which was the substituted process resorted to, was insufficient, because the defendant company was a bank; which motion was overruled, and the defendant excepted. At the trial the evidence was taken and certified, and instructions given and refused, and the defendant excepted to the rulings of the court against him, and a verdict was rendered against the defendant company; whereupon the defendant moved the court to set aside the verdict, and grant it a new trial, which motion the court overruled, and the defendant excepted; whereupon the court rendered judgment in accordance with the verdict, and the defendant brought this case to this court by writ of error.

The first question we will consider is as to the motion of the defendant to quash the process in this case because the defendant is a bank. The statute provides that the service of process against a bank shall be upon the president, as provided by section 3225 of the Code of Virginia. This section provides that service of process against a bank may be on its president, cashier, treasurer, or any one of its directors; and also it is there provided that, if the process be against some other corporation chartered by this state, or by some other state, or in any case, if there be not in the county or corporation wherein the case is commenced any other person on whom there can be service as aforesaid, or any agent of the corporation against which the case is, (unless it be a case against a bank,) or on any person declared by the laws of this state to be an agent of such corporation, and if there be no such agent in the [county or corporation wherein the case is commenced, on affidavit of that fact, and that there is no other person in such county or corporation on which there can be service as aforesaid, publication of a copy of the process or notice once a week, for four weeks, shall be a sufficient service of such process or notice. The defendant was called a banking as well as an insurance company, but with its business as a bank the plaintiff has in this suit no concern. The said defendant company was and is doing business as an insurance company, and the suit is upon a contract of insurance, made by the said company in the county where this suit was commenced; and section 3214 of the Code provides that any action of law, if it be to recover a loss under a policy of insurance either upon property or life, may he commenced in the county or corporation wherein the property insured was situated, or the person whose life was insured resided, at the date of the policy. It appeared by affidavit that no agent of the company resided in this county upon whom process could be served, and, it being against an insurance compauy, it was properly commenced in the county where the property insured was situated; and being so commenced there, and there being no agent of the said company residing there on whom process could be served, an order of publication was proper in the case. That the defendant company at other times did business as a bank is immaterial. In this transaction it was dealing as an insurance company, and the action was upon a loss under a policy of insurance; and it was with its character as an insurance company that the plaintiff was dealing, and the motion to quash the process in the case was properly overruled, as the same was lawful, regular, and altogether proper.

The second assignment of error, and which is the subject of the second bill of exceptions, is as to the refusal of the court to compel the witness Semple to disclose, at the instance of the defendant, what commission was paid him for selling, or what commission he was to receive if he sold, the plaintiff's tobacco. The witness objected to disclosing what commission he was to receive for selling, as that was his private business, and he did not wish to tell it. It does not appear in what respect that question was germane or in any wise related to the issue to be tried. The witness was engaged in selling his own tobacco, and took along some for the plaintiff, and did not sell it. The commission to be paid him was irrelevant to the issue, and no foundation was laid for it sintroduction into the trial of this case, and there was no error in excluding it.

The third assignment, and the subject of the third exception, is as to the action of the circuit court in excluding the answerof the witness Terry, which disclosed a statement of third parties, made to him. This was hearsay merely, and the fact to be proved, if necessary, could have been properly proved only by the persons having the knowledge themselves, and a report of what they had said in the absence of the plaintiff did not rise to the dignity of legal evidence, and was properly excluded.

The fourth assignment of error, and the subject of the fourth exception, is as to the action of the court in refusing certain instructions asked by defendant, and giving certain others. The first instruction asked for by the defendant, and refused by the court, and which is involved herein, is as follows: "Instruction No. 3. The court instructs the jury that any fact which, if known, would have influenced the company to fix a higher rate of premium, or would have influenced the said company in issuing or refusing to issue the policy in question, is material to the risk; and it was the duty of the plaintiff to disclose every such fact when he made his application for the said policy, and the failure so to do on the part of the plaintiff vitiates his policy." The next is instruction No. 4: "The court further instructs the jury that if they believe from the evidence that at the time the plaintiff obtained the policy sued on he knew the tobacco insured was damaged, and not salable on the...