150 S.E. 365 | W. Va. | 1929
The plaintiff, Bertie Bailey, owned property upon which her husband, R. H. Bailey, secured a fire insurance policy in his own name. Loss by fire occurred in April, 1926. She brought this action in February, 1928, to recover on that policy. A verdict in her favor was set aside by the trial court and judgment entered for defendant non obstante veredicto.
Among the defenses are (1) failure to bring the suit within the period permitted by the policy, and (2) res judicata. The period prescribed by the policy, within which litigation could be commenced, was the fourteen months following the fire. The plea of res judicata is based on a suit brought on the policy for this loss by R. H. Bailey in 1926. On June 1, 1927, the following order was entered in his suit:
*77"This day came the plaintiff in person and by B. T. Clayton, his attorney, and came also the defendant, by Steptoe, Maxwell Johnson, its attorneys; and thereupon the plaintiff admitted at the bar of the court that the legal and equitable title to, and the fee simple ownership of, the insured buildings and the land on which the same stood, were vested in the plaintiff's wife, BIRDIE BAILEY, and not in the plaintiff, at the time the fire insurance policy in question was issued, and also at the time of the fire, without the knowledge or consent of the defendant or its agent. And the issues in this action having been, by consent and agreement, submitted by the parties to the Court, and both parties waiving a trial by jury, the court is of the opinion that the plaintiff is not entitled to recover in this action, and now renders judgment accordingly.
It is therefore considered by the court that the plaintiff, R. H. Bailey, take nothing in this action, and it is further ordered, by agreement of the parties, that each party do pay his own costs. And to the action and ruling of the court in thus rendering final judgment for the defendant, the plaintiff took no exception."
Plaintiff takes the position that R. H. Bailey was acting as her agent both in producing the policy and in bringing the former suit; that the present action is the successor of his suit; and that since his suit was brought within the time permitted by the policy, the present action is not subject to the time limitation. She relies on Siever v. Throwing Co.,
The judgment of the circuit court is accordingly affirmed.
Affirmed.