80 W. Va. 236 | W. Va. | 1917
To obtain a review of the judgment for plaintiff for six hundred dollars, upon one of its policies of fire insurance, defendant obtained this writ of error.
First, it is pointed out that the demurrer to the declaration should have been sustained. While the record shows such demurrer, the ease was tried without reference thereto on the other pleadings, but the effect of the judgment was to overrule the demurrer.
The declaration is neither the short form prescribed by section 61, of chapter 125, of the Code, nor a common law declaration upon a policy of insurance. It seems to be an invention of the pleader, and probably not good as a common law pleading. Why the pleader should have chosen this particular form of declaration instead of the simple form prescribed by statute, is difficult to. comprehend. However, we conclude that as the declaration sets out in full the policy sued upon, and alleges substantially that by virtue of the policy, defendant owes plaintiff for loss in respect to the property insured thereby, etc., it should be construed as one under the statute, and not as a common law declaration, and good upon demurrer. It becomes unnecessary, therefore, to consider the several points of objection to the declaration, based upon the theory of a common law pleading.
The next point is that the court erred in allowing the
The provisions of the policy require that if the originals be lost, certified copies thereof shall be produced by the insured, and the only excuse offered on behalf of plaintiff, by his counsel, was that he did not have the papers called for, nor any of them, and never had had them. We do not think this excuse was sufficient. He did not answer that he could not produce certified copies thereof, or explain why he could not.' Moreover, on cross-examination, plaintiff showed that he had made some effort to obtain duplicate bills of invoice from L. M. Taylor Barber Supply Company, of Cincinnati. He does not say that this company refused to furnish him these duplicates, but they told him they would have to go down in the basement and dig them out, and didn’t want to do it, it wasn’t necessary. He does not pretend to have tried to obtain duplicates from other concerns from whom the property destroyed was purchased, and on further cross-examination the defendant itself produced a number of invoices of the L. M. Taylor Barber Supply Company,.for supplies sold Riley, and the defendant also put upon the stand several witnesses from supply houses, who testified to having sold most of the articles destroyed, either to the plaintiff himself, or to his predecessors in title, who had purchased
Another proposition contended for is that the court should have directed the jurj^ to return a verdict for defendant, as required by its instructions numbered one and six, because of the existence of a deed of trust or chattel mortgage upon the property at the'time of the issuance of the policy and at the time o.f the fire, without the agreement of the company endorsed upon or added to the policy, and in violation of one of the express provisions thereof, rendering the policy void.
The fact of the existence of such encumbrance upon the property is not controverted. This is one of the specifications of defense. Unless waived in some formal manner, it constituted a breach of the promissory warranty contained in the policy, voiding it, and precluding recovery. The proof of loss submitted by plaintiff admitted the existence of this encumbrance, and notwithstanding the notice of defenses specified this among others as one of them, plaintiff filed no statement in writing, specifying in general terms or otherwise' his reliance upon any matter in waiver or estoppel or
Plaintiff endeavored to meet this defense, without notice specifying them, upon several grounds: (1) That neither the. policy sued on, nor the prior policies, of which the one sued on was a renewal, prepared by Thompson, the defendant’s agent, were ever delivered to him until after the fire occurred; (2) that the policy existing upon the property when plaintiff purchased it from one Steber, had upon it the deed of trust or mortgage clause, and that the first policy issued to plaintiff had also attached to it the deed of trust clause, and that when the policy sued upon was written by defendant’s agent, plaintiff gave him no directions to leave off the mortgage clause, and made no false representation with reference thereto, and in fact did not see the policy until some ten days after the loss occurred, when it was delivered to him so that he might collect his money; (3) that the deed of trust was fully paid off and defendant could not have been prejudiced thereby; (4) that by delivery of the policy sued upon some eight or ten days after the loss occurred, knowing of the existence of the deed of trust, and that plaintiff had never before seen it, defendant thereby waived all objections to the same, based on omission of.the mortgage clause. As no notice specifying these grounds of waiver or estoppel was given by the plaintiff, as required by the statute, they were not available on the trial of the action, and the evidence offered in support thereof, over the objection of the defendant, should have been excluded.
But do these matters constitute waiver or estoppel on the
Nor do we think the facts set up in the second ground constituted waiver or estoppel on the part of the defendant. It is not contended that defendant or its agent had notice either from plaintiff, his agent, or any one else, of the existence of the deed of trust or mortgage in favor of Vandale, at the time of the issuance of the policy. True, he had notice of the existence of the prior deed of trust in favor of Goff, but he swears'he had information from Goff, before issuing the policy, that that encumbrance had been paid off. The record shows that before issuing the policy Thompson, agent, sent one of his solicitors to inquire of plaintiff what his wishes were with reference to the policy about to expire, and was advised that plaintiff desired the policy renewed, but for $900.00, instead of $750.00, the amount of the expiring policy. But it is not contended that plaintiff gave any notice to either Thompson or to his solicitor of the execution of the new deed of trust in favor of Vandale; nor is it shown that at the time of the execution and delivery of this new mortgage any notice was given to defendant or its agent thereof; nor is it claimed that defendant or its agent thereafter and before the property was destroyed by fire had notice thereof. We do not think that notice of the existence of the Goff deed of trust when the prior policies were written was sufficient to put defendant or its agents upon inquiry as to the existence of the new encumbrance when the new policy was written.
Another proposition of defense is that in violation of the terms of the policy, and voiding it, the plaintiff swore falsely
This conclusion, of course, is based upon the evidence adduced upon the trial. We do not know what the evidence may be upon another trial, and do not wish to be understood as intending to preclude the plaintiff upon another trial from establishing his case by other or additional evidence if it is possible for him to do so.
What has already been said we think constitutes a sufficient response to all other points of error relied upon, and our conclusion is to reverse the judgment, set aside the verdict, and award the defendant a new trial.
Reversed, verdict set aside, and new trial awarded.