57 W. Va. 571 | W. Va. | 1905
Mary A. Staats brought an action against Georgia Home Insurance Company in the circuit court of Mason county to recover for a loss by fire of a dwelling house, on which she had taken from said company a policy of insurance, in which action the court directed a verdict for the defendant and rendered judgment for the defendant.
The plaintiff filed with her declaration, which is the statutory form under Code, chapter 131, section 61, not the original policy, but what purports to be a copy of it. The defendant pleaded three pleas, non-assumpsit and the statutory general issue under Code, chapter 125, section 64, that it was not liable to the plaintiff as in'the declaration alleged, and a third plea, that the policy had been canceled, adding to this plea the said statutory plea, the third plea being verified by affidavit. The third plea exhibited a copy of the policy. When the case was on trial before the jury the plaintiff first gave in evidence that copy of the policy which the defendant
It is urged that the court erred in refusing to allow the copy filed with the declaration to be amended in the manner above indicated. It may seem strange that a motion to amend a paper filed with the declaration as a part of it under the statute should be made; but when we think about it it does not seem so strange. Code, chapter 125, section 61, in the form there given for a declaration on a policy of insurance makes the policy part and parcel of a declaration like an exhibit with a bill in chancery. It answers for averment. I shall not say how far a paper
It is thought that if such amendment had been allowed, inserting the clause directing the loss-money to be paid to said building association, it would have shown that the plaintiff could not recover for the reason that it would appear that the building association alone could sue, and Mrs. Staats had no right to sue, and hence she can not complain of refusal to allow such amendment of the copy of the policy. Can Mrs. Staats sue on the policy? As to who can sue where the policy is taken by the property owner, with such a clause, the cases are a perfect confusion. 11 Ency. PI. & Prac. 395. I think the weight of authority, where the Code practice does not prevail requiring both to sue or be before the court, is that the owner, that is, the mortgagor, can sue in his own name, either with or without express consent of the mortgagee. He owns the property insured, pays the consideration premium, the actual contract is with him. The provision that the loss-money shall be payable to another is not an assignment. It is only a conditional appointment that on a contingency the money shall go to the mortgagee; that is, if the mortgage is still unpaid at the date of loss. And it may not cover all the amount of loss. The legal title in the contract is in the party
It is urged that there was no original policy present by which to amend. We answer that the defendant filed with its plea what it said was a true copy of the original. Hence, it must be treated as if it were the original, for the purposes of this case.
, There were found to be variances in other respects than that .above specified between the two copies of the policy. In . one the property insured is described as “the two and one- , half story frame, shingle roof building and additions adjoin-t ing and communicating,' while occupied by assured as a pri- . vate dwelling house and situated on the south side of public ..road in Cooper district, Mason county, West Virginia”; and . in the other as “her -two story frame building and additions
It is suggested that there was no proof of the making of the policy,' and that the plea of non-assumpsit and general denial of liability called for such proof. Say so. The evidence of the plaintiff fully proves the issuance by the company of the policy, the making of the policy.
Our conclusion is to reverse the judgment and remand the cause with leave to the plaintiff to amend the declaration to conform to the policy filed with the defendant’s third plea, and for a new trial.
Reversed.