194 F. 669 | 4th Cir. | 1912
The defendant in error, T. Gilbert Wood, was the agent of the Spring Garden Insurance Company of Philadelphia, at Burkeville, Va. As the agent of that company he issued a policy of insurance, dated 24th of December, 1909, upon a piece of property known as the Haytokah Inn, situated in Burkeville, Va. In his report to the company, which he was required to make whenever a policy was issued, he wrote under the column for the insertion of the name of the insured simply the words “Haytokah Inn.” This name was simply a designation of the property, and not the name of a firm or company. Wood was the owner of the Haytokah Inn, but did not in his report to the company communicate to them that fact. The
To this proceeding the defendant filed two special pleas. The first was a plea that there had been a breach of the condition in the policy that the entire policy should be void if the insured had or should thereafter procure or make any other contract of insurance, whether valid or not, on the property covered in whole or in part by the policy. The other special plea was a plea of nonpayment of the premium for the policy.
When the case was called for trial, it was agreed and entered in open court that the defendant should withdraw its pleas, theretofore filed, with the understanding that it should be allowed to make the same defenses under the general issue that it might have done under the special pleas, and then for its plea plead the general issue of not guilty. It is contended by the defendant in error (plaintiff below) that this limited the plaintiff in error (defendant below) to such defenses only as it could have set up under the special pleas; but the language of the agreement does not bear that construction. On the contrary, it would seem to bear the construction that the defendant should be allowed to plead the general issue, and in addition to such defense as could be availed of under the general issue it should have the right to avail itself of any defense that it could have done under the special pleas.
“By consent of the parties, the following charge is given: The court instructs the jury that the' defendant company can only avail itself of the defenses pleaded; and any testimony as to the failure of the insured to give the name of the owner of the building in question, on the daily report, is not to he considered in determining the liability of the company, but may be considered in determining the credibility of the witnesses.”
It is claimed by the defendant in error (plaintiff below) that under this consent instruction the plaintiff in error (defendant below) was debarred from making any question that the plaintiff had failed in his proof, inasmuch as he had sued upon the policy as issued to T. Gilbert Wood, and had produced to support his allegation a policy made to the Haytokah Inn, which was not the designation of any person, firm, or corporation, and, furthermore, was debarred under this consent instruction from insisting by way of defense that the plaintiff, although the agent of the company, had failed to notify the company that he was the real party in interest as the owner of the property, but, on the contrary, had notified the company, that the insurance was issued to a different party, to wit, Haytokah Inn.
The counsel for the plaintiff in error (defendant below)^ insists, un-
It follows from this that under the evidence at the trial below the court should have granted the defendant’s motion for a peremptory instruction on this point, and that the judgment below must be reversed, and the cause remanded for a new trial in accordance with this decision.
Reversed.