126 Va. 156 | Va. | 1919
delivered the opinion of the court.
This is an action on an accident policy to recover for the accidental death of the insured. After all the evidence was introduced the defendant demurred thereto, and the trial court sustained the demurrer and entered judgment for the defendant. ' To that judgment this writ of error was awarded.
The policy contains the following provision: “The company may cancel this policy at any time by written notice delivered to the insured or mailed to his latest address appearing on the company’s record with its check for the unearned part, if any, of the premium, but such cancellation shall be without prejudice to any claim arising on account of disability commencing prior to the date on which the cancellation takes effect.”
The statute (Acts 1912, p. 137, § 1) provides that accident policies shall, amongst other things, contain the following provision:
“(h) A provision that the policy may be cancelled at any time by the company by written notice delivered to the insured or mailed to him at his last address as shown by the records of the company and the tender of the company’s check for the unearned portion of the premium Sfc # ❖ 99
The case, stated from the standpoint of a demurrer to the evidence, is as follows: C. R. Fishburne was the agent of the insurance company in the city of Roanoke to solicit insurance in the company, and on July 21, 1914, he obtained from John Wolonter applications for two policies which were subsequently issued to him and the premiums thereon duly paid. One of these policies was a sick benefit policy, and the other the accident policy in suit. Two claims under the sick benefit policy were asserted and paid. The application for the accident policy was made upon a printed form with blanks left for information to be furnished by the assured. So much of the form as is necessary for onr purposes, with the information indicated by italics, is here inserted.
“ (h) The firm or corporation with which I am connected as an employee is Virginia Bridge & Iron Company.
“The business conducted is Bridge Building.
“The business address is Care of Virginia Bridge Comrpany, “City, Roanoke, State,...............
“(i) My occupation is Laborer (Hooper).”
At the time the application was made, the insured resided outside of the corporate limits of the city of Roanoke, and had neither city nor rural free delivery. Afterwards he moved to 116 E. Salem avenue, within the city and mail delivery limits. He gave no orders to the post officials for delivery of his mail at any time. The first claim under his sick benefit policy was adjusted and paid by Fishburne. The second claim under the sick benefit policy was adjusted and settled by an adjuster of the company, at Fishburne’s office in the city of Roanoke, Va., about the first of February, 1915. Prior to this time, and after Wolonter had moved into the city, he obtained a certificate from Dr.1 Parker as to the character of his sickness for which the claim was to be asserted, and sent it to Fishbume, the agent of the company, by his wife, who is beneficiary in the accident policy and the plaintiff in this action. She then notified Fishburne of their changed residence, and that her husband wished all communications “from Mr. Fishburne and the company with reference to these policies sent to 116 E. Salem avenue, Roanoke, Virginia.” Fishburne wrote the address on a slip of paper, and subsequently, when the adjuster arrived, she received, by private messenger, a note from Fishburne addressed to her at “116 E. Salem avenue, Roanoke, Va.,” calling her to his office to meet the adjuster and settle the second sick benefit claim. As to what transpired at this meeting, she testifies that,. “After we had agreed upon the amount of
On February 8, 1915, the insurance company mailed a notice of cancellation of the policy in suit in New York city, addressed to “John Wolonter, Roanoke, Va.” A check for the unearned premium was enclosed with the notice of cancellation. The notice arrived in Roanoke on February 9, 1915, but was not delivered till February 13, 1915, when the plaintiff was informed by Fishburne' that the policies had been cancelled, and directed her to go to the post-office and inquire for the. notices. This information was furnished by Fishburne in response to an inquiry by the plaintiff over the telephone, who had been informed by the hospital authorities that the policy in suit had been cancelled. Wolonter was mortally wounded on February 12, 1915, and died February 14, 1915.
The two policies hereinbefore referred to were sent from the home office of the company in New York in envelopes addressed to “John Wolonter, Roanoke, Va., care Virginia Virginia Bridge & Iron Company,” and were delivered to Wolonter at the bridge company’s office. All other letters received by John Wolonter or the plaintiff, from either Fishburne or the insurance company, were addressed to “Roanoke, Virginia, care of the Virginia Bridge & Iron Company,” and when Fishburne was notified of the changed address, after he had been requested by the company to get the correct address, “he agreed that he and the company would thereafter address all communications with reference to said policies to us at 116 E. Salem avenue,
It is insisted by counsel for the defendant in error that this ruling of the trial court cannot be considered by this court because not assigned as error in the petition for the writ of error, but in this he is mistaken. The error is sufficiently assigned in the petition.
The petition states that “the court’s ruling in sustaining the motion to exclude all oral testimony, which proved that the defendant company had a record of the new address,
For the reasons hereinbefore stated, we are of opinion that the judgment of the corporation court is erroneous and must be reversed, and this court proceeding to enter such judgment as the trial court should have entered will enter a. judgment in favor of the plaintiff in error .against the defendant in error for the sum of one thousand dollars, with interest thereon, after the rate of six per centum per annum from November 18, 1915, until payment, and her costs in this court and also in the trial court.
Reversed.