Grubbs v. Virginia Fire & Marine Insurance

Clark, J.: The learned counsel for the defendant properly and frankly concede that’the principal defences are, (1) other insurance taken out by plaintiffs without notice and without defendant’s consent thereto endorsed on the policy; (2) breach of warranty that a clerk should sleep in the store. As to the first defence, consent to the additional insurance was endorsed on the policy by the attachment of the usual printed form used by the company for that purpose *110 and signed by its agent, who had procured this insurance. The jury found, in response to the issue submitted to them, that -such additional insurance was made known to the defendant, and that the endorsement of its consent was authorized. It is sufficient for us to say that there was evidence sufficient to go to the jury tending to prove such finding. Though it was agreed that additional insurance should be made known to the company, and its consent thereto endorsed on the policy, it is not stated in the policy who, or that any particular officer or agent, should be authorized to accept notice of additional insurance and endorse defendant’s consent thereto upon the policy, or that such consent should be endorsed at the home office or other particular place. As to the second ground of defence, there was a statement in the application that a clerk then slept in the store, but there was no agreement or warranty that a clerk should continue to sleep in the store during the continuance of the policy. * There is evidence from defendant, that whether the Clerk slept in the store or not, it would not have affected the rate paid, and there is no evidence tending to show that the defendant was prejudiced by the failure of the clerk to sleep there. This was not a continuing warranty. Aurora Ins. Co. v. Eddy, 49 Ill., 106; Schmidt v. Ins. Co., 41 Ill., 295; Wood on Ins., §§167, 168, 171, 176, and cases there cited. A case exactly “on all fours” is Frisbie v. Ins. Co., 27 Pa. St., 325; in which these same words in the application, “clerk sleeps in store,” were held to be merely a warranty in presentí, and not that a clerk should continue to sleep there. These are the principal contentions. There were other exceptions sufficiently numerous and ingenious, but we fail to see upon considering them that the defendant has been deprived of any substantial right or benefit which he was entitled to upon the trial. Affirmed.