79 W. Va. 187 | W. Va. | 1916
P. E. Pauley and E. D. Pauley, partners doing business as, P. E. Pauley & Son, recovered judgment against the Sun Insurance Office, a corporation, in an action upon a fire insurance policy and it obtained this writ of error.
The property was insured for the term of one year from noon on the 18th of January, 1915, and consisted of one frame building, situate at Holly Hurst Station on the Coal Eiver Division of the Chesapeake & Ohio Eailway, occupied as a general store, and the stock of. merchandise therein. The building was insured for $600.00 and the stock of merchandise for $1,400.00, and both were destroyed by fire on the 30th of January, 1915, about eight o’clock in the morning.
The following defenses were pleaded, viz.: (1) failure to furnish proof of loss; (2) cancellation of the policy before the fire occurred; (3) that insured were not the sole and unconditional owners of the property; (4) failure to comply with the iron safe clause; (5) over-insurance and reliance upon the three-fourths value clause of the policy; and (6) an amend
Plaintiffs replied specially to the foregoing pleas as follows : (1) that proof of loss was waived by denying liability on the ground that the policy had been cancelled; (2) that if there was any attempt to cancel the policy it was ineffective, because no notice thereof was given to plaintiffs, whereas the policy provided they should have five days notice; (3) deny they are not the sole and unconditional owners of the property, but admit the existence of a vendor’s lien on the house and lot, at the time of the fire, for $200.00, the unpaid portion of the purchase price of $1,000.00 which they had agreed to pay, $800.00 of which they aver they had paid; (4) aver facts which, they insist, show a substantial compliance with the iron safe clause; deny the property was over-insured; and (6), replying to defendant’s sixth or amended plea, they aver, that the taking of a complete inventory on the 15th of January, 1915, was a full compliance with that clause of the policy relating to the taking of inventories, and'that the thirty days time allowed them in which to make an inventory, after the issuance of the policy, had not expired when the fire occurred. Defendant also demurred to the declaration and pleaded the general issue. The demurrer was overruled, and, on the issues joined on the aforesaid pleas, a trial was had by jury, resulting in a verdict for plaintiffs for $1,777.75, on which the court entered judgment.
Defendant offered no evidence and moved the court to exclude plaintiffs’ evidence and direct a verdict for it, which motion the court overruled, and this is assigned as error. A consideration of this assignment necessitates an'examination of the evidence to ascertain if any of defendant’s numerous pleas is supported by proof.
First, as to its plea that there was no proof of loss, plaintiffs
The policy provided that the insurer might cancel it by giving five days notice thereof and returning the unearned, premium. Jones & Winkler rendered their bill against plaintiffs for the premium on the policy sued' on, bearing date January 18, 1915, and this bill was paid by plaintiffs’ check, drawn to the order of Jones & Winkler on the Kanawha Valley Bank, dated February 2, 1915, which was indorsed and collected by them on the following day. Plaintiffs received no notice and did not return'the policy. Counsel for defendant insists that Jones & Winkler were the general agents of plaintiffs, with implied power to waive notice, and that notice to them was notice to plaintiffs. While the law permits an insurance broker, or agency, to occupy a dual agency, in respect to terminating, as well as procuring insurance contracts, his power to cancel the contract is not to be implied from his agency to procure it, nor is it to be lightly inferred from previous dealings between the parties. Although it is proven that P. R. Pauley, the senior member of the firm, had dealt with Jones
The only evidence to support defendant’s, third plea, that
As to. the alleged failure to comply with the iron safe clause, it is established that plaintiffs kept their books of account in their dwelling house, and produced them at the trial. They contained a complete inventory, taken on the 15th of January, 1915, of the stock of merchandise then in the building, and also an account of the goods thereafter purchased and mingled with -the others, and also an account of the amount of daily sales; but not of items sold, which were shown to have been entered in the book at the close of each day’s business. These accounts included the cash and credit sales under the same head, the average daily sales amounting to twelve or thirteen .dolars. It was thus shown that the total cash and credit sales, from the time the invoice was taken until the fire occurred, aggregated $132.97. It was plaintiffs’ custom, in making sales on credit, to write the same on duplicate slips, one of which they gave to the customer and the other they retained and filed away in a drawer. These were destroyed by the fire. It is insisted that this manner of keeping the sales account shows a breach of the promissory warranty* to “keep a set of books, which shall clearly and plainly present a complete record of business transacted, including' all purchases, sales and shipments, both for cash and credit, from the date of inventory, as provided for in the first section of this clause, and during the continuance of this policy.” The purpose of this provision is to preserve a correct account of the business done in order that the value of the stock of goods on hand, at any time during the continuance of the policy, may be known, and the amount of loss thus ascertained. The
The production of the inventory, taken on the 15th of January, three days before, the policy was written, is a full compliance with the provision of the policy relating thereto. Even if there had been no inventory taken within twelve months next prior to the date of the policy, plaintiffs were given, by the terms of the policy, thirty days after its issuance within which to take an inventory, and that time had not expired when the fire occurred. The third clause of the iron safe provision required plaintiff to "keep such books and inventory, and also the last preceding inventory, if such has been taken, securely locked in a fireproof safe at night, and at all times when the building mentioned in this policy is not actually open for business; or, failing in this, the assured will keep such books and inventory in some place not exposed to a fire which would destroy the aforesaid building. In the event of failure to produce such set of books and inventories for the inspection of this Company, this policy shall become null and void, and such failure shall constitute a perpetual bar to any recovery thereon.’’ Inventories were taken prior
There is no evidence to support the fifth plea.
The point raised by the sixth plea is disposed of by our holding in respect to defendant's fourth plea.
The jury were instructed in accordance with the principles herein announced, and the judgment is affirmed.
Affirmed.