90 Va. 658 | Va. | 1894
delivered the opinion of the court.
The first styled action is upon a policy of insurance, trespass on the case in assumpsit for $8,250 for a loss incurred by fire. The defence is that no such contract was made as that sued upon; fraud in the procurement of the tire by which the property was burned; no effort made to save the property by the plaintiff, and the efforts of others prevented by the false alarm of danger made by the plaintiff; increase of risk after the insurance by keeping gunpowder, and the building used for manufacturing purposes; the loss claimed greater than the interest ot the assured; false estimates of the value of the property furnished by the assured; misrepresentations and concealment of material facts in reference to the value of the property and the interest of the assured, made in the application for insurance; no sufficient proofs furnished, as required by the policy; no proofs of loss furnished by the plaintiff; change of interest, title, possession, and occupancy, after the policy issued, without the consent of the defendant indorsed on the policy, as re
The policy was issued to W. A. Thomas & Go., a mercantile firm doing a tinning business in the town of Culpeper. This firm was composed of the said W. A. Thomas and one Mrs. Ellen E. Stringfellow, a married woman, whose husband, George E.' Stringfellow, was, by the agreement between the parties forming the co-partnership, to act for her as her agent under the contract, and render services in the business as occasion might require. The insurance company was represented by local general agents stationed at Culpeper. The insurance was procured by these agents, who were familiar with the business, and well acquainted with the parties concerned. The business insured was a general tin, tinning, and stove business. The fire occurred late in the night. The defendant in error, W. A.-Thomas, surviving partner, resided in' the town, and was at work late at night in the place of business, and had shut up and retired to bed at his home in the town some hours before the fire occurred. When called up, he went to the store, where a large crowd was already assembled, and attempted to enter the front door, but retired before the smoke and fire. Subsequently he opened a window, and went in and got his books out of the safe, and saved them, it is said, at a great risk to himself. A cry of gunpowder being raised (it does not appear -by whom), parties whose property adjoined procured axes and broke into the hardware department, and
The chief defence, aud most relied on, is that there was a “ change of interest, title, possession, and occupancy, after the policy issued, without the consent of the defendant indorsed on the policy.” It appears that the firm of "W. A. Thomas & Co. had continued to run the business as before until the fire; and it is not contended that there was any sale or transfer making any change in the ownership or in the parties in possession. But the circumstance to which we are pointed to sustain this contention is that Mrs. Stringfellow died before the fire occurred, in the month of March of that year; and by will left her property for life to Mr. George F. Stringfellow, her husband, charged with the support of her infant child, and, after his death, to the child, providing, however, that he should continue the business as heretofore, as he might deem best; and he had continued to do this, as we have said, and W. A. Thomas & Co. continued the business as it was before, except additional investments in stock and merchandise, as their business views suggested; and there was no actual change in the personel of the force at work and controlling the business, in
These general principles, the result of the decided cases, and to be found in the text-books on the subject, being borne in mind, we will briefly consider the clause in question. The insertion is intended to protect the company against unknown risks. The contract of insurance is like other contracts made between known and contracting parties. The contract being one of hazard, and largely of trust and confidence, the person contracted with is deemed of such vital importance that it is expressly provided that the same shall not be assigned without the consent of the company. The person, and all that is involved in the person, his estimated character and known habits, may affect the risk in no small degree, and a stranger is not to be brought in without the consent of all parties. The interest must remain entire and absolute, or the safeguards arising from the ownership and uninsured interest maybe broken down. In this ease there has been no sale or transfer, or change in the persons in possession. Mrs. Striugfellow, one of the partners, died, and the business, by operation of law, passed to one surviving partner for the settlement of the business of the concern. By the testator’s direction, and the consent of all parties interested in the business, the affairs went on, buying and selling as before. It is conceded that if the fire had occurred the next day after the death of the deceased partner, it would not have impaired the policy; and the continuance of the business for several months does not alter the question, as there was no objection, but a positive approval, on the part of the company, by a renewal under these precise circumstances. We are not without the aid of judicial construction and decision upon this question. In the late case of Va. F. & M. Insurance Co. v. Vaughan, 88 Va., 835, the question arose where one partner sold out to the other; and it was held, by the weight
This is the main question in the ease, but there are others which appear to be relied on also. It is claimed that the company insured a tin shop, and the policy contained a provision against a manufacturing establishment, and that the making of tin cans and soldering strips of tin for roofing to be placed upon houses was a violation of the policies. This would be to stick in the bark, indeed. The obvious daily work of the tin shop, patent to everyday observation, was the business insured. To hold that the work of this sort violated the clause in question would not be to effectuate the contract of parties, but. to circumvent it. There are other questions still which have been mentioned, which appear to have been rightly decided by the trial court. The question of fraud and deceitful conduct was left to the jury, and by them decided, and we perceive no evidence in the record to sustain these charges. Upon the whole case, we are of opinion to affirm the judgment complained of, rendered herein by the circuit court of Culpeper county.
In the other four cases the property insured was the same as that in the first, the facts were the same, the defences the same, and the results the same, judgments being for the plaintiff in each case, which judgments are all affirmed.
Judgments affirmed.