152 S.E. 11 | W. Va. | 1930
The bill as amended and supplemented is mainly for the specific enforcement of a contract for fire insurance on a dwelling house now and at the time of the fire owned by plaintiff below (appellant) in the town of St. Albans in Kanawha county. The trial chancellor found by decree of March 28, 1929, that there was no such contract under the pleadings and evidence and dismissed the bills, and this appeal followed.
C. B. Johnson, the husband of appellant, owned the dwelling and lots in fee. In 1925 the appellant, his wife, instituted a divorce suit against him claiming a one-half undivided interest in the property. Pending that litigation the husband, on November 24, 1925, insured the house against loss by fire for three years in the Dixie Fire Insurance Company (hereinafter called the Insurance Company) for $2,500.00 and paid the premium. By decree of September 26, 1926, a divorce was granted and the wife was decreed a one-half undivided interest in the house and lots and a commissioner appointed to make a deed, which deed was duly made and admitted to record October 5, 1926. Soon thereafter plaintiff went to the insurance agents, Turner Turner, and exhibited the decree and deed and asked for protection against fire on her one-half interest under the policy taken out by her husband on the entire property. The agents thereupon issued an endorsement to be attached to the husband's policy as follows: "The Dixie Fire Insurance Company hereby consents that the interest of C. B. Johnson as part owner of the property insured in this policy be assigned to Grace Johnson. *514 This policy to cover in her name only. Turner Turner, Agent." This writing bears date October 26, 1926, was received by West Virginia Fire Underwriters' Association October 27, 1926, and received through the latter by the Insurance Company October 28, 1926. Plaintiff claims to have paid the agents $5.00 for this writing so attached. Both members of the agency deny exacting or receiving $5.00 for this service. On October 23, 1926, C. B. Johnson, the husband, conveyed indirectly to plaintiff his one-half undivided interest in the property. Later, plaintiff again went to the agents and requested $4,500.00 on the property. Whereupon they issued to her a $2,000.00 policy in Queen Insurance Company of America, and they say the above endorsement consenting to assignment of the C. B. Johnson policy was issued. The agents say that the writing made when she first came to them (then she owned one-half undivided interest) was to consent to a transfer to her by the husband for so much of the policy as would cover her one-half interest she had then acquired. That writing is not in evidence. At the time the Queen Insurance Company policy was issued to her she paid the agent $20.00 which they say was the only money ever paid to them by her and which was to pay and did pay the premium on Queen Insurance policy. The husband had always had the possession of his policy, had never consented to a transfer of it, in fact had refused to do so, and about the first of December, 1926, sent it through another agency which had succeeded Turner Turner, the former agents of defendant, to defendant Insurance Company for cancellation, and it was then cancelled. The unearned premium of $15.00 was then paid him. On December 26, 1926, the house was destroyed by fire. Demand was made for payment of the insurance under the husband's policy. It was refused, and this suit followed, on the theory as finally developed by the amended and supplemental bills that there was an agreement between the agents and Mrs. Johnson that a policy would be issued to her.
The two members of the agency say they made no agreement with plaintiff other than that evidenced by the endorsements *515
authorizing and consenting to a transfer of the policy issued to the husband. It is quite evident that Mrs. Johnson, plaintiff, was under the impression that she either had a contract for a policy, or was protected by the endorsements which she thought gave her the right of protection under her husband's policy. She says she paid for that protection. As above stated, there is a flat denial of any payment other than for the Queen Policy premium. The lower court's finding of fact in that regard cannot be reversed by this Court. Passing over the point insisted upon and argued by defendant's counsel that the essentials of the alleged contract for insurance have not been shown, such as amount of insurance, the term it should run, the premium to be paid and the like, in order that a contract may be specifically enforced as exemplified inMeadows v. Insurance Company,
The preponderance of the evidence is that there was neither a contract for a new policy, nor an assignment of the existing one standing for the benefit of the husband in case of loss by fire.
The decree will be affirmed.
Affirmed. *517