35 W. Va. 666 | W. Va. | 1891
This is a suit brought in the Circuit Court of Ohio county on the 29th day of December, 1888, bj^ the Peninsular Land Company, plaintiff below and appellee here, against the Pranklin Insurance Company of Wheeling, defendant below and appellant, on a policy of fire insurance for five hundred dollars from 3d April, 1888, at 12 o’clock at noon, to 3d April, 1889, 'at 12 o’clock noon. The declaration is in the short form given in section 61, c. 125, of the Code. The policj'- is referred toas filed therewith. Under section 64 of same chapter defendant filed a plea, saying that “said defendant is not liable to the plaintiff as in said declaration alleged,” and filed therewith a specification of grounds of defence. Plaintiff filed a reply, joining issue with a statement of matters relied on in waiver, estoppel, and avoidance of defendant’s statement of defences; a jury was elected and sworn ; the evidence heard; various instructions given and refused; a motion by defendant that the jury should be required to answer in writing eight several questions of fact specially; motion overruled; verdict found for plain
We find it convenient to consider first the eight questions asked by defendant to-be submitted to the jury under section 5, e. 131 of the Code. The court refused to submit these questions to the jury: “Questions by defendant for special finding: (1) Was notice of the loss given by assured forthwith? (2) Was due diligence exercised by the assured in giving notice of the loss? (3) Was there any reason for the assured delaying fifteen days in notifying the plaintiff of the loss? (4) If any such reason existed, what was it? (5) Was a particular account of the loss rendered within thirty days thereafter? (6) Was a particular account of the loss rendered within a reasonable time thereafter? (7) Was there any reason for the assured delaying until June 27 to render the particular account required by the policy? (8) If any such reason existed, what was it?” But few cases have reached this Court involving this subject. See Kerr v. Lunsford, 31 W. Va. 659, 648, (8 S. E. Rep. 493) our first case ; also, Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W. Va. 155,)11 S. E. Rep. 1009,) and opinion of Lucas, J.; also Bess v. Railroad, Co., 14 S. E. Rep. 234 (at this term) and opinion of Brannon, J. — as to the purpose and reason of the law. The statute provides that “where any such separate verdict or special finding shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly.” The question is, did the court err in refusing defendant’s request to submit these eight questions? This practice has its advantages, no doubt, but it is easy to foresee the abuses to which it may gradually lead; hence this warning is given early, not with reference to the questions in this particular case, but to help guard ourselves from gradually gliding into some abuses which are now inducing other courts to limit, rather than improperly extend, the practice of propounding so many interrogatories to the jury. “It is an abuse fraught with evil, for it tends to bewilder the jury, rather than to aid them.” It does not apply to criminal cases. If the question is objectionable in
The eight questions here rejected fall into two classes— one relating to the alleged failure of the insured to give defendant a proper and timely notice of the loss; the other relating to its failure to render to defendant within the time fixed by the contract, or, if in excess of that, within a time appearing under the circumstances to be reasonable, the particular account of loss required by the terms of the policy; and we must suppose a favorable answer given to each question, as far as there is any evidence tending to justify such favorable answer, and then, taking
The supposed favorable special findings would be as follows. ¥e have divided the questions into two groups of four questions each :
First four. “Notice of loss -was not given by the assured forthwith, nor was due diligence exercised by the assured m giving notice of the loss. There was no reason for the assured delaying fifteen days in notifying the defendant of the loss; no such reason existed.” But may not the general verdict say the giving of any notice or a more timely notice was waived by defendant, if there was any evidence tending to show such waiver, and thus render such special finding immaterial ? But ■ plaintiff', in the statement of grounds of reply accompanying its general replication, does not specify in terms a waiver of such notice of loss. See Code, c. 125, ss. 65, 66. .
Second four. Rejected questions answered favorably. “A particular account of the loss was not rendered within thirty days thereafter, nor was a particular account of the loss rendered within a reasonable time thereafter; and there was no reason for the assured delaying until 27th June, 1888, to render the particular account required by the policy ; none such existed.” As to this plaintiff specially replies, and relies upon waiver. And if there is any evidence tending to show such waiver, and it is permissible to show it under this policy, then it is comprehended in the general verdict; and such special finding is not inconsistent therewith, because immaterial, or, in other words, is to be treated as, although confessed or found, nevertheless thus
Hotice of loss. This belongs to that class of stipulations relating to a matter arising after the capital fact of loss ■within the range of defendant’s liability according to its contract has become fixed, termed a “formal” requirement as distinguished from a “substantive” requirement, one looked to iii fixing the loss; and, as to formal requirements, such as notice of loss, the courts lean strongly against depriving the insured of the insurer’s liability by reason of any failure or neglect to comply with the mere formal requirements of the contract, and sometimes seemingly resort to quite slender and far-fetched inferences of waiver.or estoppel for that purpose. And the same doctrine, and for the same reason, is applied to the question of proof of loss, or the rendering of a particular account of loss, as it is termed in this policy. Still the main principles of interpretation applied to contracts in general are applied to contracts of insurance, notwithstanding that, owing to the exceptional nature of the subject-matter and the peculiar relation of the parties and the public concernment, certain parts are sometimes held void as against public policy; the doctrine of waiver and equitable estoppel, based upon human nature, common sense, and common justice, applied to other parts; the rules of evidence and laws of agency so stated and applied as to be in appearance, if not in reality, strikingly exceptional. Therefore
Second group of four questions. These relate to preliminary proof of loss, the rendering of a particular account of loss. The rendering of particular account of loss is, as we have already seen, one of the formal requirements, as distinguished from those that precede the loss. • On this point, May on Insurance (volume 2, § 465) says : “No doubt the usual stipulation that the insured shall furnish certain preliminary proofs of loss, when loss has been sustained, are conditions precedent, without compliance with which no recovery for loss can be had. But, in conformity to the general rule applicable to conditions precedent, a failure to comply with which works a forfeiture, they will be construed strictly against the insurers, for whose benefit they are imposed, and liberally in favor of the insured, upon whom they impose burdens more or less onerous.” The fire occurred 9th April, 1888, at 8 o’clock a. m. The policy sued on was issued on 12th April, 1888. On 9th April, at 2 o’clock p. m., it was dated back to cover loss from 3d of April, 1888 — insurance $500; loss, total; proportional part of loss more than $500; good faith of insured admitted. On 12th April Mr. Paul told the secretary of defendant company that the hotel was burned, as informed by a notice received by him; and the two telegraphed to Boston a recall of the policy, but it seems to have been too late, the policy having been delivered. On 6th July, 1888, the secretary of the defendant company wrote to the-president of the plaintiff company — the insurer to the insured — saying : “The Franklin Insurance Company of this place can not recognize its liability under its policy for your claims;” and proceeds to set out the grounds : (1) No satisfactory explanation had been given of the peculiar circumstances under which the policy had been dated back, and the fire occurring during the period thus taken into the policy. Then various other reasons — the failure to furnish particular account of loss within the thirty days being among them; and the letter was written after the expiration of the thirty days. See Sheppard v. Insurance Co., 21 W. Va. 368, 383; Deitz v. Insurance Co., 33 W. Va. 526, 544 (11 S. E. Rep. 50.) See, also Nease v. Insurance Co., 32 W. Va. 283
I come now to the instructions. Plaintiff’s No. 1 was withdrawn, or not requested, and therefore does not appear. Defendant’s No. 1, relating to payment of premium, was given without objection, and therefore need not be given. The court gave the following five instructions for plaintiff, over defendant’s objection, numbered 2, 3, 4, 5, and 6, and refused to give defendant’s ten instructions, numbered 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, to which defendant excepted.
Instructions given for plaintiff: “(2) The failure to furnish proofs of loss under the policy within thirty days after the fire does not, under all circumstances, and at all events, constitute a bar to the plaintiff’s recovery. The defendant, for whose benefit the provision is made, may waive a compliance with it; and, even in the absence of a waiver, a delay for more than thirty days in furnishing the proofs will not be conclusive against the plaintiff’s case unless it appears that the defendant has in some way been prejudiced by the delay. (3) The provision in the policy which has been introduced in evidence, requiring persons who have sustained loss by fire to give-notice forthwith to the secretary of the defendant, is not to be construed as requiring that such notice should be absolutely immediate, but only as requiring that it should be given within a reasonable time, under the circumstances of the case. (4) The forthwith notice required by the policy to be given by persons sustaining loss may be given by the assured through an ageut, and need not be given by him in person. (5) Under the provisions of the policy which has been introduced m evidence it is not necessary that the plaintiff, in making out its case, should furnish evidence of an award of ai’bi-trators, in the absence of any showing that a submission to arbitrators was requested by either party, and in the absence of any showing that an award was in fact made. (6) If the jury believe from the evidence that the policy which
The following ten instructions, offered by defendant, were refused by the court, to which refusal defendant excepted : “ (2) The jury is instructed that under the policy sued on nothing is due the plaintiff' until sixty days after due notice and proofs of loss are made by the assured and received at the defendant’s office in accordance with the terms and provisions of the policy, among which is a provision that the particular account required by the policy as part of such proofs shall be rendered within thirty days after the fire. (3) The plaintiff, not having shown thattlie particular account mentioned in instruction numbered 2 was rendered within thirty days after the fire, is not entitled to recover in this action. (4) Under the policy sued on nothing is due the plaintiff until sixty days after due notice and proofs of loss are made by the assured and received at the defendant’s office, and it is necessary that the particular account required by the policy as a part of such proofs should be rendered within a reasonable time after the fire. FTo reason for delay appeai-ing in the evidence, and such particular account not having been rendered within a l-easonable time, the plaintiff can not recover in
I am of opinion that the five instructions requested by plaintiff' and given by the court, taken as a whole, and with reference to the evidence in the case, propound the law with sufficient practical accuracy. The first one, I think, would have been better if it had closed as follows: “Unless it appears that plaintiff has unreasonably delayed furnishing such proof of loss, or that the defendant has in some way been prejudiced by the delay.” Among the ten instructions requested by defendant and refused by the court, I am of opinion that Uo. 6 is good, and should have been given. The first jiart is good, because it contains the important qualification, “Unless they further find that the defendant waived this requirement of the policy.” The latter part is good, because the point of law ruling the question involved springs out- of the facts given, and in
The judgment complained of is therefore reversed, the verdict set aside, a new trial awarded, and the case remanded.
REVERSED. REMANDED.