| W. Va. | Feb 19, 1907
The Western Assurance Company issued a policy of marine insurance in favor of J. F. York insuring the steamer
The assurance company assigns error in the refusal of the court to strike out the evidence of the plaintiff and to direct a verdict for the defendant. After this motion the defendant introduced evidence in defence, and this waived the motion to strike out the evidence.
As to the motion to direct a verdict. One ground assigned for this is, that the policy provides “that no claim will be made for loss, damage or expense resulting from stranding or grounding, unless caused by stress of weather,” and it is particularly insisted that the stranding of the steamer was not caused by stress of weather. Whether stress of weather was the cause was a question of fact for the jury and we could not set aside the verdict, unless we could say it was in this respect plainly without evidence. The river was high, and the wind was high in March. The steamer had a barge attached, and a rope connecting the barge with the steamer broke, the barge swung around and, as the defence claimed, caused the steamer to strand. Evidence was given that the combined effect of high water and wind caused the boat to strand. Can we say how much each contributed? Can we say that wind was not the proximate cause? But there was evidence that the wind is frequently heavy in the bend of the river where the accident occurred, and that on that day it was high, and came in gusts, and that the accident was attributable to the wind. A witness said, “There was no harder wind that I ever saw blowing there.” Under these circumstances how can we say the wind was not the greater cause? I repeat the cause of the stranding was a jury question. Surely the evidence just indicated would prevent the court from taking the case from the jury. Counsel rely on the theory that “stress of weather” has a technical or peculiar meaning, and that as high wind was to be expected in March, the wind proven to have been blowing does not answer the term “stress of weather.” We are cited Railway Co. v.
Another ground assigned for direction of a verdict for the defence is, that conditions of the policy were not complied with, one being proof of loss within-thirty days. Proof was not made within that time, which the policy makes a condition precedent to recovery. The plaintiff, as an answer to this, sets up a waiver by the company. The evidence goes to show that within thirty days an adjuster was sent by the assurance company to examine into the loss. The assurance company, on being informed of the loss, instructed the owner of the steamer to “take care of the vessel.” Later, after considerable delay imputable to' the assurance company, came the adjuster, and in interview with York, asked York for the expense bill for floating the steamer into the stream again, and was shown it. He then asked what would be the damage to the steamer, and was informed that it would be from $700 to $1,000, when he said he was glad
After the promise of payment the assurance company wrote a letter to one acting as attorney for the plaintiff say: ing that the conditions and stipulations of the policy had not been complied with; declaring that the stranding was not from stress of weather, but from a chain or rope breaking and letting a barge which the boat was towing contrary to privilege, swing around and pull the steamer on a bar; that the boat was safe and free from harm on the bar; that no survey had been made. This letter is a clear denial of liability, except only that it closed with the statement that if papers were properly gotten up touching the loss, they would be submitted to the general agent. Taken as a whole it was a practical denial of liability. This will dispense with proof of loss. Medly v. Ins. Co., 55 W. Va. 344, pt. 11. This denial was not within the thirty days. It denied liability on other grounds than want of proof of loss and survey, and would thus dispense with such proof. And as to failure to comply with its request for proper papers touching the loss, would dispense with that. And if such papers were then furnished, it would be, or might be, a waiver of the former promise of payment.
The evidence is clear to prove said compromise, if credible. That agreement closed all questions of conditions. They were waived. There was, by the plaintiff’s evidence, an absolute promise of payment. The evidence of the adjuster denied such compromise. The jury believed the plaintiff’s two witnesses. Can we overthrow a verdict founded on conflicting oral evidence? In fact the case rests on oral evidence and that as to the compromise highly conflicting. It was a jury case.
The court was asked' to give an instruction, Y, saying that if “you find from a fair preponderance of the evidence that the defendant has not waived such survey and sworn statements, and that they have not been furnished by the plaintiff, you must find for the defendant.” The court struck out the words “a fair preponderance of the.” We do not see that the change altered the instruction materially, or made it erroneous.
Objection is made that the verdict, $1586.26, was excessive, because the policy provided that the insurer should be liable for loss only in proportion as the sum insured, $3500, bore to th^ value of the boat, $5000. There was evidence that the damage was $1,500, whereas the claim for it was $1,000. The expense of floating $586.26. But aside from this, the demand of the owner was $586.26 expense and $1,000 damage, and there was an absolute promise to pay that sum. If the assessment of damage were on the actual loss, regardless of the compromise or' agreement, this question might be material. As stated above we do not see but that this case depends on questions of fact for the decision of a jury.
Therefore, we can do nothing but affirm the judgment.
Affirmed.