8 W. Va. 474 | W. Va. | 1875
This is an action of assumpsit founded on a policy of insurance made by the defendant to the plaintiff on the 6th day of January, 1870. The policy insures the plaintiff against loss or damage by fire to the amount of $2,-600 on his stock of dry goods, groceries, queensware, hats, caps, boots and shoes, and such other articles of merchandise as are usually kept in a country store, all contained in the one story frame building situate on the south side of State street, in the town of Portland, Preston county, West Virginia, and occupied by assured as a store room, subject to certain exceptions, conditions, &c., some of which are hereinafter considered.
The declaration alleges that the property, so insured, was accidentally destroyed by fire on the 21st day of January, 1870.
The action was brought in the municipal court of Wheeling on the 7th day of May, 1870, and judgment was rendered therein in favor of the plaintiff against the defendant on the 28th day of August, 1871.
The defendant demurred to the plaintifPs declaration, and the court overruled the demurrer.
The defendant then pleaded non-assumpsit." This plea seems to have been filed on the 19th day of September, 1870; and at the same time the defendant filed two other pleas; one of which avers, that the plaintiff, in making the statement, under his signature. and verified by his oath, purporting to be such particular account of the loss or damage sustained by him by reason of the destruction by fire of the property mentioned and intended to be insured by the said policy of insurance, was guilty of fraud and false swearing; and the other avers, that the plaintiff intentionally and fraudulently caused and permitted the said insured property to be set on fire and destroyed on the said 21st day of January, 1870.
Subsequently, and on the 3rd day of February, 1871,, the defendant filed three additional pleas -numbered respectively in the record four, five and six.
Plea No. 4 it is unnecessary to consider, as no question arises upon it, so far as the record discloses.
Plea No. 5 avers, substantially, that in said policy special reference is made to an application in writing made by the plaintiff No. 321, which was his warranty and a part of said policy. And that in his said application, the plaintiff agreed to keep the chimneys, fire places, stoves and pipes iii the building occupied by him, in which the fire occurred, well secured, but on the contrary the said chimneys and pipes were not -well secured, and wore wholly unsafe, by reason whereof, and the breach of the plaintiffs said warranty contained in his said application, the plaintiff forfeited all claim under the said policy.
Plea No. 6 I will not notice here because no question fairly arises upon it, upon the record, as it comes to us..
To the three last named pleas the plaintiff filed general replications and issue was sufficiently made up on each of the pleas.
On the 24th day of August, 1871, a jury was empan-neled and sworn to try the issues in the cause, and on the 26th of the same month they rendered a verdict in favor of the plaintiff for the sum of $2,000 with interest thereon from the 2nd day of May, 1870, and on this verdict the court, on the 28th of August of the same year, rendered judgment in favor of the plaintiff against the defendant for the amount of the verdict and the costs of suit. To this judgment a supersedeas has been heretofore allowed. And thus the cause has been brought before this Court for consideration.
Th & first error assigned by the counsel of defendant (who is plaintiff in error) is that the court erred in overruling the demurrer to the declaration. This assign
It is further argued that the declaration alleges certain specific exceptions in the policy which qualify the defendant’s liability on the policy, and, in effect, admits there are other such exceptions not therein stated, but contained in the policy, and that this is a fatal defect in the declaration on general demurrer. This presents an interesting question, and one on which there is, at least, some apparent conflict in some of the authorities. “If the plaintiff allege a condition subsequent to his estate, he need not aver performance, but the breach must be shown by the defendant, and matter in defeasance of the action need not be stated; wherever there is a circumstance, the omission of which is to defeat the plaintiff ’s right of action, prima facie well founded, whether called by the name of a proviso, or a condition subsequent, it must, in its nature, be a matter of defense, and ought to be shown iu the pleadings by the opposite party.” Chitty on Plead. 6th Am. ed. from the 5th London ed., pages 254 and 255; 6 vol. of Comyn’s Digest, Pleader, C, (81); Hotham, Knight &c. v. The East India Company, 1 Term Rep. 638, 645. In the case of Vavasour v. Ormrod, 6 B. & C. 430, cited in 1 Chitty on Plead.255, was an action upon alease, and the declaration described the reddendum as containing an absolute reservation of rent. In fact the reddendum was “yielding and paying during the term, (except as hereinafter mentioned,) the yearly sum,” &c. In the latter part of the lease there was a covenant and-proviso by which a deduction was to be made, if a certain event happened; and it was held that the declaration was bad. Lord Tenderden said: “If an act of parliament or a private instrument contain in it, first, a general clause, and afterwards a separate and distinct clause, something which would otherwise be in-
The plaintiff, in support of the declaration has cited the case of Lounsbury v. Protection Ins. Co., 8 Conn. 459 reported in First Fire Insurance Cases by Bennett, 369. But in that case the declaration recited the execution of the policy by the defendants, and recited its provisions and the articles annexed as “conditions of insurance,” and the question before the court was whether it was necessary, by averment in the declaration, to negative the exceptions and not whether it was necessary to state the ‘exceptions. The court held that “a declaration on a policy need not negative the exceptions therein, such as that the loss did not happen from invasion or that the building was not used for hazardous trades or other sim- ■ ilar clauses introduced, not as conditions precedent, but by way of proviso for the benefit of the insurer.” The case of Hunt v. Hudson River Fire Insurance Company, 2 Duer. (N. Y.) 481, decides the same principle held in the case in 8 Conn, above cited. The form of declaration given by Mr. Greenleaf in the 2d yol. of his work on Evidence in note 1 to section 376, in the simplest cases of marine polices, and also the form given in same volume in note 3 to section 404 in cases of policies against, fire, Mr. Greenleaf in his said note 1 says: “The following forms of counts in the simplest cases arising upon marine policies established in Massachusetts, are well adapted to the brevity of modern practice at common
It is further argued that the allegation in the declaration that the certificate of an officer required by the condition precedent and which the plaintiff delivered was “under the hand of the proper officer” is defective in two respects, viz: first. It should state what officer it was and his name, and second the certificate should be stated to be under the hand and seal of the officer, instead of under his hand. I think the kind of officer should be
The second error assigned is, that there is “ material variance between the declaration and policy offered in evidence.” At the trial the defendant objected to the policy being given in evidence to the jury, because -of variance ; but the court overruled the objection. On
It appears by bill of exceptions No. 2 that the defendant gave in evidence to. the jury the application of the plaintiff, upon which the policy was issued to him by defendant. This application contains, in the commencment thereof, a description of the goods, &c., the value thereof, the sum insured, the rate of insurance, the premium and where the goods are kept. The second question in the application is “size and number of stories of each building to be insured” and the answer written thereunder is, “The goods and merchandize are in the house insured as store room for Mrs. Nancy Wotring by your Company last summer.” The third question “Is the building stone, brick or wood, when built and in what repair? and of what material is the roof?” Answer,, “see diagram on said application” — all other questions, being twelve in number, contained in the application, are blank and unanswered. But there is at the end of the questions this provision, “I do hereby agree to keep chimneys, fire places, stoves, and pipes all well secured, and ashes in a safe deposit and declare that the above questions are correctly answered; that the foregoing is a correct description of the property upon which insurance is solicited, and that the estimated value which is fixed thereon is a just and proper valuation of the same; and that I have not withheld any circumstance or information in any manner increasing the hazard of the above, enumerated property with which the Company ought ta be made acquainted. Any misrepresentation in effecting this insurance shall be deemed not only a sufficient cause for cancelling my policy, but render the insurance void.” This application was signed by plaintiff. The defendant also gave in evidence the application of Mary Ann Wot-ring, which the court certifies is the application referred
By bill of exceptions No. 3, it appears that evidence was given to the jury, as stated in the defendant’s second' bill of exceptions, and also evidence tending to prove that $3,000 was an overvaluation of the goods mentioned in said application, at the time the application was
By bill of exceptions No. 4, it appears that after evidence was given, as in the second bill of exceptions is stated, the plaintiff, by his attorney, moved the court to instruct the jury that “If the jury find that the agent of the defendant, who took the application, had at the time a knowledge of the buildings, and the manner in which the stove pipe and chimney were secured at the time the insurance was effected, and took upon himself to fill up the blank application, and did so upon his own information, then it was not required of the plaintiff, under the policy, to change the condition of the pipe and chimney, but he was required to keep them in good order and condition, but was not required to put them in better order and condition than they were in at the time the insurance was made.” The court gave this instruction to the jury and the defendant again excepted.
I will consider the two instructions asked by defendant, which were refused, and the one given by the court at the instance of the plaintiff, under the defendant’s third assignment of error, because they, in a great degree, involve the same principles applicable to this case, as disclosed by the record. It is proper to state that the application was partly printed and partly in writing— that the agreement, near the conclusion of the applica
The policy also provides that “any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known every fact material to the risk or any over valuation or misrepresentation whatever, either in the written application or otherwise,” shall annul and make void the policy. It would seem from these provisions that the Company issued its policy of insurance on the faith of the represen
I now pass to the consideration of the matter of the defendants fifdi bill of exceptions. By this bill of exceptions it appears that evidence was given to the jury as stated in the second bill of exceptions and also evidence tending to prove that the plaintiff intentionally and fraudulently caused the said insured property to be set on fire and destroyed, and that the loss or damage claimed in the plaintiffs declaration was occasioned by such act of the-plaintiff, and the plaintiff gave evidence tending to rebut the same and prove the contrary. And thereupon the defendant by his counsel, moved the court to instruct the j ury hat “It is not necessary in order to pro vent the plaintiff’s recovery that the plaintiff should be proved, beyond a treasonable doubt, to have intentionally and fraudulently /caused or permitted the said insured property to be set on fire ; but if the weight or preponderance of evidence (be to that effect the jury should find for the defendant.” but the court refused to give the instruction and the defendant excepted. The principle involved in the instruction, as asked, is important and interesting. There-is a conflict in the authorities upon the subject. In civil cases where the mischief of an erroneous conclusion is not deemed remediless, it'is not necessary that the minds of the jurors be freed from all doubt; it is their duty to decide in favor of the party on whose side the-
f An action on a policy of insurance is a civil action, .and though the defense set up be that the plaintiff set fire to the building insured, the rule of evidence is the same as in other civil actions, and the jury may find the issue upon the weight or preponderance of evidence. Washington Union Insurance Co. v. Wilsons, 7 Wis., 169. See also 1 United States Digest, 276, under the head of Evidence, sections 3, 4 and 5; 50 Ill., 206 ; 42 Vt. 80; 57 Maine, 495. Plaintiff’s counsel have cited us to 1 Bing., 339; 8 J. B. Moore, 612; 1 Fire Insurance Cases,
It may be, however, that a different rule should prevail as to the plaintiff in an action brought by him to recover damages for a cause of action founded upon crime, as an action for adultery, but as to this I do not now determine, as the case before us is not of that character. The case before us simply involves the question as to which party shall bear the loss occasioned by the fire.
For the foregoing reasons the judgment of the municipal court of Wheeling, rendered in this cause on the 28th day of August, 1871, must be reversed, the verdict of the jury set aside, and a new trial granted in the cause, the costs of the former trial to abide the final result of the cause. The plaintiff in error must recover his costs here, and the judgment of the said court overruling the demurrer to plaintiff's declaration must be reversed, and the cause must be remanded to said municipal oourt, with leave to the plaintiff to file an amended declaration, and for further proceedings therein there to be had according to law.
Judgment Reversed, Yeedict Set Aside And a New Trial Granted.