29 S.E. 944 | N.C. | 1898
Lead Opinion
This is an action brought on a policy of insurance to recover three-fourths of the value of a house destroyed by fire. The property belonged to the plaintiff, and was conveyed by deed of trust to certain trustees to secure a bond given to the Life Insurance Company of Virginia. The policy was on its face made payable to The Life Insurance Company of Virginia, mortgagee, and provided that it should be void on several contingencies, among others, "If, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." It also provided that: "This policy shall be canceled at any time at request of insured, or by the company, by giving five days notice of such cancellation . . . If this policy shall be canceled, or become void, or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal — this company retaining the customary short rate, except that when this policy is canceled by this company by giving notice, it shall retain only the prorata premium." On 5 July, 1894, the trustees advertised the property for sale, in a weekly *309 newspaper published in the town of Wadesboro, under the deed of trust, and on 7 August, 1894, before any sale, the property insured was totally destroyed by fire. No notice of this sale was given by the trustees to the insured or her husband, and they had no knowledge or information that the property would be advertised for sale before they saw the advertisement in the newspaper some time before the fire. The resident agent of the defendant company testified that he issued the policy; was a regular subscriber of the said paper, and saw (501) the advertisement while it was running through the paper before the fire. No part of the unearned premium was ever repaid or tendered to the insured. It was admitted that the insured had in due time given the notice and sent on proofs of loss according to the provisions contained in the policy. The following issues were submitted to the jury:
1. Did plaintiff Martha C. Horton have knowledge of the notice of sale under the deed of trust of the property insured, and if so, when was such knowledge acquired? A. Yes; after the publication of the notice by the trustees, and before the fire, which occurred while said notice was being published.
2. Did W. A. Rose, local agent of the Home Insurance Company, have knowledge of said notice of sale, and, if so, when was such knowledge acquired? A. Yes; after said publication of notice and before the fire.
3. Did defendant Home Insurance Company waive the breach, if any, by the plaintiffs of the conditions of the policy? A. No.
4. What was the cash value of the plaintiff's house at the time of its destruction? A. Twenty-two hundred and fifty dollars ($2,250).
5. In what sum, if any, is defendant Home Insurance Company indebted to plaintiff, Martha C. Horton, on her policy of insurance? A. $1,687.50.
The first and second issues were answered by consent; the third was answered under the instruction of the Court that there was no evidence of waiver; and the fifth issue was answered by the court as a consequence of the fourth, upon an agreement that the defendant, if liable at all, was indebted to the feme plaintiff to the amount of three-fourths of the value of the property as found by the jury.
After the finding upon the fourth issue, the defendant (502) contended that the Court should answer the fifth issue "Nothing." and moved for judgment on the first and third issues and responses thereto; the contention of the defendant being that its liability upon the policy had ceased before the fire, by reason of the stipulation which provides that the entire policy, unless provided by agreement entered thereon or added thereto, shall be void if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale *310 of any property covered by this policy by virtue of any mortgage or trust deed. The Court refused this motion, and gave judgment for the plaintiff; whereupon the defendant appealed. This brings before us a pure question of law, founded upon the charge of the Court, in which we see no error. Admitting the validity of a provision rendering the policy void upon a contingency beyond the control of the assured, the only reasonable construction we can give to it is that it was intended to compel the assured to give notice to the company of any such proceedings or advertisement so that the company could exercise its right to declare the policy void, and return the unearned premium, which it was required to do by the very terms of the policy. But the assured could not be required to give information which she did not possess, and which came to her only in the same manner and through the same means that it came to the agent of the defendant, whose knowledge is in law that of the defendant. It is probable that, as the agent lived in the same town where the newspaper was published, he saw the advertisement before the plaintiff, who lived in a different town.
In any event she has violated no provision of the contract of (503) insurance either in letter or in substance, as the notice of sale was given without her knowledge. If the defendant stands upon the letter of the contract, ignoring the equities of the plaintiff, he must be satisfied with what is given him by a literal interpretation. If he demands his full pound of flesh, he must take that and nothing more.
We are of opinion that the judgment is correct upon the issues as found by the jury, even in the absence of a waiver. If, under proper instructions from his Honor, the jury had found that there was a waiver, as they might well have done from the evidence, the case would be that much stronger for the plaintiff; but, as the error of the Court consisted in directing a verdict upon that issue instead of leaving it to the jury, we cannot assume to say what their verdict would have been.
The correctness of this instruction is not strictly presented in this appeal; but, as the plaintiff has directly raised the question in his own appeal now before us, and which must be disposed of in some way, we will consider the two appeals together, so as to avoid repetition of the same citations. Of course, the plaintiff's appeal was taken simply to secure her exceptions in the event of an adverse decision upon the points involved herein. It is rendered useless to her by our view of the case, as its successful prosecution could result only in a new trial, which is now neither necessary nor desirable. At the same time, as it raises a question of importance, we think it better to reaffirm the repeated decisions of this Court. The Court below erred in directing a verdict upon that issue, as there was sufficient evidence to go to the jury. It is well settled in this State that the knowledge of the local agent of an *311
insurance company is, in law, the knowledge of the principal; that the conditions in a policy working a forfeiture are matters of contract and not of limitation, and may be waived by the insurer, (504) and that such waiver may be presumed from the acts of the agent.Argall v. Insurance Company,
This line of cases should be distinguished from Alspaugh v. InsuranceCompany,
The powers of a local insurance agent and the relative liabilities of the company are ably discussed and clearly defined by Justice Miller in Insurance Company v. Wilkinson, 13 Wall., 222, in which he says: "The powers of the agent are prima facie coextensive with the business entrusted to his care, and will not be narrowed by limitations not communicated to the person with whom he deals (citing authorities). An insurance company establishing a local agency must be held (506) responsible to the parties with whom they transact business, for the acts and declarations of the agent, within the scope of his employment, as if they proceeded from the principal." The vigorous language in the earlier part of the opinion, in which he condemns the conduct of some insurance companies in stimulating their agents to the highest degree of activity in soliciting insurance, and then seeking to avoid responsibility for their acts and representations, is worthy of note as coming from so high a source.
In Willis v. Insurance Company,
The counsel for the defendant called the attention of the Court to sec. 6, ch. 299, Laws 1893, wherein it is provided that "the standard fire insurance policy, as prescribed and set out in section 121 of the Insurance Law of New York, shall be exclusively used in this State by all (507) fire insurance companies from and after 1 May, 1893," and insisted that such policy should be construed in accordance with the decisions of the State from which it came. Whatever force there might otherwise be in the suggestion is fully met by section 8 of the same act, which reads as follows: "All contracts of insurance, the application for which is taken within this State, shall be deemed to have *313 been made within this State, and subject to the laws thereof." In the determination of a new question the decisions of other States may be taken as precedents to guide our action, but can never be authorities to reverse the settled ruling of our courts. These two sections are not inconsistent, and when construed together become clear in their meaning. The policy is essentially a North Carolina contract, although the form thereof may have been borrowed from another jurisdiction. A suit of homespun is none the less a native production because the pattern by which it was cut came from another State. It was deemed best to have a uniform policy, which would eventually become familiar to our people, and by repeated adjudications acquire a settled meaning. The New York form was selected because it had been adopted by the largest insurance State in the country, and was the outgrowth of many years of careful and efficient State supervision. It is none the less a North Carolina contract, solvable under our laws and determinable by our decisions. The judgment below is
Affirmed.
IN PLAINTIFF'S APPEAL IN SAME CASE.
Addendum
This is the plaintiff's appeal in the same case that has just been decided on the defendant's appeal wherein the judgment of the Court below was affirmed. In that opinion we have fully discussed the questions raised on both appeals, and it is, therefore,(508) unnecessary to repeat here either the facts or arguments. The judgment below is affirmed, but as the plaintiff prosecuted this appeal in good faith to protect what might have become a substantial right, and as his exception to the ruling of the Court below is sustained, he is entitled to his costs. Judgment is
Affirmed.
Cited: Ins. Co. v. Edwards,