94 Va. 355 | Va. | 1897
delivered the opinion of the court.
It appeared in evidence upon the trial that the property insured was encumbered, at the time of the insurance and of the fire, by deed of trust dated February 25, 1885, to Eugene Kelly and Isaac Davenport, Jr., to secure three hundred $1,000 coupon bonds of the plaintiff company.
The plaintiff, over the objection of the defendant, introduced evidence tending to show that its officers and agents had never noticed this provision in the policy until after the loss; that it had policies written in a number of other companies. only one of which objected to paying the loss assessed against it; that the insurance was placed by Mr. Montague, a stockholder and director of the plaintiff company, who states that he had often times insured property for railroads and other large corporations, in insurance companies which he represented, without engrafting the condition against encumbrances in the policy at all, not deeming it necessary to state the amount in volume of the several mortgages usually resting upon such corporations, but he could not state that such was the habit of the defendant company. It appears that Montague & Co. Were applied to for insurance upon plaintiff’s property for $41,500, $10,000 of which was written in companies represented by him, and the residue distributed among his friends, of whom Moore & Co. represented the defendant company.
Mr. Moore, a witness for the defendant, testified that he
The whole matter of law and fact was submitted to th¿ court without the intervention of a jury, and thereupon a judgment was entered for the defendant, to which a writ of error was awarded by one of the judges of this court.
In May on Ins., vol. 1, sec. 290, it is said: “If no inquiry be made, nothing but good faith is necessary, touching the title or interest;” and in sec. 291 (a): “If the policy is to be void by an incumbran re, without written consent of the company, such incumbrance avoids it, whether known to the assured or not.”
In Hench v. Insurance Co., 122 Pa. St. at p. 135, it is said : “An assured who covenants against incumbrances must keep his covenant precisely as every other person, and it is his business to see that no incumbrances fall upon his property.”
In West Rockingham Mutual Fire Ins. Co. v. Sheets & Co., 26 Gratt. 854, the Court, speaking upon this subject, says: “If a policy of insurance does not require that the insured shall give in the liens or incumbrances on the property insured, or state what is his title to it, and no questions are asked of the insured by the insurer, the policy is not avoided by the failure of the insured, without any fraudulent intent, to mention a lien upon it.” The court is there referring to a policy in which there is no warranty, or representation amounting to a warranty, or condition, or stipulation covering the point under consideration. If the insurer does not require the insured to state the liens, requires no warranty upon the subject, and makes no stipulation or condition in the policy, the failure of the insured without fraudulent intent to mention a lien upon the property will not avoid the policy. In that case there was no concealment, no misrepresentation, no warranty, and no covenant as to incumbrances.
So in Morotock Ins. Co. v. Rodefer Bros., 92 Va. at p. 747, the company relied upon the covenant against a chattel mortgage. It appeared in the proof that there was a mortgage upon the realty, but none upon the personalty; no “chattel mortgage” as it is described in the policy. In other words, the covenant was against the existence of a mortgage of one character, and the proof was of the existence of a mortgage of a wholly different character. The policy in that case was properly construed against the company, and it was held liable for the loss.
In the case before us there is a plain covenant that the policy shall be void if the property was mortgaged at or after the date of the policy. It was a covenant which the parties had a right to make, and which, if broken, the courts have no choice but to enforce.
The statute law (Code of Ya., sec. 3252) requires that “In
It is contended by plaintiff in error that this section precludes the defendant from relying upon the provision avoiding the policy in the event of the property insured being encumbered; it not appearing that this provision of the policy was printed in type of the prescribed character. Ho such point was made in the trial court.
The object of the statute is a wise and beneficent one to protect applicants for insurance who are often times inexperienced and unacquainted with the provisions and stipulations usual in policies of insurance, by requiring that such conditions and restrictive provisions shall not constitute a defence unless they are printed in the policy in type of a prescribed size. It does not forbid companies to protect themselves by the insertion of conditions, limitations, and restrictions upon their liability, for men uaually have the right to contract as they please about their own affairs.
If printed in small type these restrictive provisions might easily escape the observation of the unwary, and it has therefore been wisely ordered that they, and not the policy, shall be nugatory unless printed in type of such a size as would challenge the attention and be easily read by the ordinary applicant for insurance.
"We entertain no doubt that, if the defence suggested in argument here could have found aDy support in the evidence, the court would net have been called upon to indulge in any conjecture, or to resort to any strained construction df the
But however this may be, the point was not relied on in the court below, and cannot be made here for the first time. Warren v. Warren, 93 Va. 73.
The policy is set out in the record, and, along with the other evidence in the cause, was submitted to the court. With all the evidence before it, the court entered judgment for the defendant. By that judgment the court enforced the provision which rendered the policy void. In so deciding, it must have held that it was a valid provision, which it could not have done if section 3252 applied. It must also have held that the evidence was insufficient to show a waiver of the condition by the defendant, or that it was from any cause inoperative. That judgment is before us for review upon a certificate of the evidence, and is to be considered, under the law, as upon a demurrer to the evidence. Every presumption is in favor of its correctness, and it cannot be disturbed unless error therein to the prejudice of the plaintiff in error be made to appear upon the record.
We have been unable to discover error, and the judgment must be affirmed.
Affirmed.