Morotock Insurance v. Fostoria Novelty Co.

Citations

• 94 Va. 361
• 26 S.E. 850
• 1897 Va. LEXIS 84

Syllabus

<p>1. Fire Insurance— Warranties —Parties are not held to have entered into warranties unless they clearly so intended, and, if a policy of insurance is so framed as to render it doubtful whether the parties intended that the exact truth of the applicant’s statement shall be a condition precedent to any binding contract, that construction which imposes upon the assured the obligation of a warranty should not be favored.</p> <p>2. Fire Insurance— Warranties—Burden of proof.—In an action upon a fire insurance policy the burden of proof is on the defendant to show a breach of affirmative warranties—mere statements of existing facts—by the plaintiff in his application for the insurance. It is not incumbent on the plaintiff to allege such warranties and aver their performance. They are not conditions precedent to his right of recovery.</p> <p>8. Evidence—Illegal evidence—When harmless error.—Although a question asked a witness, and his answer thereto, are iliegal and improper, yet if the propounder’s case has been completely made out without such question and answer, and the admission of the answer did not and could not affect the result, it is harmless error, and the Appellate Court will not, for this cause, reverse the judgment of the lower court.</p> <p>4. Fire Insurance—Over-valuation of property.—If the insurer of property is only liable for the actual cash value, the amount of the insurance or the value of the property is not material. Furthermore, an overvaluation to avoid a policy must be intentional and fraudulent, and not a fair expression of an honest opinion, and the fact that the property is considerably over-valued does not of itself establish such fraud on the part of the assured as will avoid the policy.</p>