Va. Fire & Marine Insurance v. Goode & Co.

Riely, J., delivered the opinion of the court. ' The questions arising upon the writ of error awarded in this — 768 — case are, with few exceptions, the same that were disposed of in the case of Georgia Home Ins. Co. v. Goode & Co., just decided, ante, p. 751. It will, therefore, only be necessary to decide those not arising in that case, and refer to it for the proper disposition of the questions common to both cases, for, although that case was before us upon a demurrer to the evidence, and this case is before us upon a motion for a new trial, the same principles govern us -in their consideration and disposition. Code of Va., sec. 3484. The plaintiffs were the same in both cases, and the evidence shows that the applications for insurance were'taken by the same person, at the same time, upon the same stock of goods, and that the recovery sought in each case was for the loss caused by the •same fire. And upon a comparison of the evidence, so far as it relates to the questions common to both cases, there was no material difference. In regard to the claims of a variance between the allegations of the declaration and the proof upon the issues of partnership^ and the objection that the aggregate amount of the recovery exceeded the damages laid in the declaration by reason of the allowance by the jury of interest on the amount assessed as damages, it is sufficient to refer to what was said in respect thereto in that case. ' It was urged as an obstacle to a recovery in this case that the preliminary proof of loss was not furnished as required by the terms of the policy. It appears from the evidence that a blank form of proof of loss was sent to the plaintiffs by the defendant company, which they filled up, swore to, and returned to the company. Its receipt was acknowledged by the company, but in its letter acknowledging the receipt, it simply stated, without pointing out any defects, that the proof was not made up in conformity with the policy contract, and was “not satisfactory.” It was obligatory upon the company to specify the defects, and its failure to do so was a waiver of any objection to the proof of loss. 2 May on Insurance (3d eel.), secs. 468 and 469 B. — 769 — The plaintiff, A. M. Wright, testified that shortly after the company acknowledged the receipt of the proof of loss, its adjuster, R. F. Johnson, came to Calverton, the place where the plaintiff had conducted their business prior to and at the time of the fire, and sent for the witness, who was at his home, about two miles off; that he talked with Johnson, exhibited to him their books, the inventory, and such duplicate invoices as they had been able to procure, and told him all the facts and circumstances in connection with the issuing of the insurance; and that immediately thereafter they received a letter from the company denying the liability and declining to pay the loss. It is well established that a denial of all liability under the policy, without giving reasons, absolves the insured from any obligation to furnish preliminary proof of loss, or to correct defects in it if it has been furnished. In such case, it would be but an idle formality, which the law will not require to be performed. 2 May on Ins., sec. 469; Richards on Insurance, sec. 81; Portsmouth Ins. Co. v. Reynolds, 32 Gratt. 613; and West Rockingham Mut. F. Ins. Co. v. Sheets, 26 Gratt. 854. The nineteenth question contained in the application was in these words: “Will you agree to keep a reliable person in the building at all times? State name of such person at present.” To which the following reply was made: “Answer: W. B. Goode. Sleeps in building.” It appears from the evidence that when the application was being filled up and the answer to the above question had to be given, the soliciting agent, Robert E. Harris, was informed by the applicants that W. B. Goode habitually slept in the building, and seldom elsewhere, but that it was impossible for him to sleep there every night, as he was compelled to be away some times to purchase goods, as well as for other purposes; that he had at that time no clerk; that his partner, Wright, lived nearly two miles away, and that if the company insisted upon some one sleeping in the building every night, they would answer the question “Ho”; that the agent said that this was not the meaning of the — 770 — clause; that the company did not expect that some one should sleep in the building every night; that even a farmer was away from his house some nights, and that the answer, as it was after-wards written: “W. B. Goode: Sleeps in building” would be all that was necessary, and would be satisfactory to the company; and that the answer was so written at the agent’s dictation, and with full knowledge on his part of the entire situation. -Robert E. Harris negotiated the insurance with Goode & Co. for the Va. Eire and Marine Ins. Co., and for the Georgia Home Ins. Co. at the same time. In point of fact, it was divided between the companies at his suggestion. In soliciting the insurance he was the sub-agent or employee of Thomas B. Harris & Son, who were general agents for both of the said companies, and were vested with like powers by each of them. In the case of Goode & Co. v. Georgia Home Ins. Co., 92 Va. 392, Judge Buchanan, in delivering the opinion of the court, said: “The evidence introduced by the plaintiffs tended to prove a state of facts which entitled the plaintiffs to prove any act or declaration of Bobert E. Harris whilst engaged in negotiating with the plaintiffs in reference to their insurance, which they would have had the right to prove if the act or declaration had been made by Thomas B. Harris & Son, the agents, in person; and, if it appeared from the whole evidence, that Eobert E. Harris was the employee of Thomas B. Harris & Son, agents of the defendant, and was in the habit of soliciting insurance for them, and that he solicited the plaintiff’s insurance with the knowledge and assent, or by authority, of said agents, then his acts and declarations whilst negotiating the plaintiff’s insurance were the acts and declarations of the agents, and bound the defendant company to the same extent that they would, if done or made by such agents in person.” The evidence in this case was sufficient to establish the very state of facts, which, it was said by Judge Buchanan, the evidence in that cause tended to prove, and the contention of the defendant company that because Goode was absent at the house — 771 — of his partner on the night of the fire on a visit to his daughter, to whom he was engaged, and whom he afterwards married, the policy was avoided, cannot prevail. If the facts communicated to Eobert E. Harris had been commimicated directly to the company, it would have been estopped to assert a forfeiture of the policy because there was no one sleeping in the building on the night of the fire. His knowledge being imputable to the company, it is equally estopped, although the facts that were communicated to him were not disclosed by him to the company, or to its general agents, whose employee he was. Goode & Co. v. Georgia Home Ins. Co., supra. This conclusion renders unnecessary any expression of opinion in regard to the nature of the answer, as to whether it was a promissory or merely an affirmative warranty, as a somewhat similar answer was held to be in Va. Fire & Marine Ins. Co. v. Buck & Newsom, 88 Va. 517. To the twentieth question contained in the application, which was as follows: “Is the property, building, or stock encumbered by mortgage, judgments, suit, or otherwise?” the answer given was “Hone.” The evidence in this case as to what occurred between the insured and the agent in respect to this matter at the time the application was made out is substantially the same as in the case of the Georgia Home Ins. Co. v. Goode & Co., Ante, p. 751. The question of forfeiture was there fully discussed and decided against the contention of the company. It is sufficient here to refer simply to what was there said on the subject. The bills of exception, 1 and 3 (number 2 not being relied on), raise the question of the admissibility of the testimony as to what passed between the insured and the agent at the time that the answers to questions 19 and 20 were given. The court did not err in admitting the testimony. The law is well established that such evidence is proper in the case of insurance contracts. It is not offered or admitted for the purpose of contradicting the writing, “but to show that the representation, as it — 772 — was written, ought not to be used against the party upon the ground of an equitable estoppel.” Lynchburq F. Ins. Co. v. West, 76 Va. 575. It is not deemed necessary to go over the instructions seriatim, as the questions of law embodied in them have been so recently considered and decided by this court. Mutual F. Ins. Co. of Loudoun Co. v. Ward, 95 Va. 231; Farmers’ and Mechanics’ Benev. F. Ass. v. Williams, Id. 248; and Goode & Co. v. Georgia Home Ins. Co., 92 Va. 392. It is sufficient to say that, after a careful examination, we find that those given by the court for the plaintiffs correctly state the law as expounded by this court, and that those ashed for by the defendant company and refused by the court were in conflict with the principles of its decisions. It was contended in this case, as in the case of the Georgia Home Insurance Company v. Goode & Co., that while the application contained no express limitation on the powers of the agent, yet the questions themselves brought home notice to the insured of the limited powers of the agent. This position was held to be untenable in that case, and the conclusion in this case must be the same. We find no error in the judgment of the Circuit Court, and it must be affirmed. Affirmed.