42 W. Va. 647 | W. Va. | 1896
This was an action of trespass on the case in assumpsit brought in the Circuit Court of Jefferson county, by B. A. Woolpert against the Franklin Insurance Company, a corporation existing under the laws of the state of West Virginia to recover from the defendant the sum of eight hundred dollars, with legal interest thereon from the 17th day of February, 1892, which the plaintiff claims the defendant owes him by virtue of a policy of insurance bearing date on the 20th day of February, 1892, for loss in respect to the property insured by said policy, caused by fire on or about the 17th day of February, 1892, at Charlestown, Jefferson county, W. Va. The policy of insurance upon which this suit was predicated reads as follows:
“Policy of Insurance. No. 76,277. $800.00. By this policy of insurance, the Franklin Insurance Company, at Wheeling, West Va., in consideration of the receipt of six dollars, and the representations, covenants, and warranties of the assured hereinafter named, do insure B. A. Wool-pert against loss or damage by fire, to the amount of eight hundred dollars ($800.00) on stock merchandise, consisting of dry goods, groceries, notions, tobacco, cigars, contained in two story frame, tin-roof building on corner of Washington and Lawrence street, in Charlestown, Jefferson county, West Virginia. And the said company hereby agrees to make good unto the said assured, the executors, administrators, and assigns, all such immediate loss or damage, not exceeding in amount the sum or sums insured, as above specified, nor the interest of the assured in the property, except as herein provided, as shall happen by*649 fire to the property so specified from the 20th day of April, one thousand- and 91, at twelve o’clock at noon, to the 20th day of April, one thousand eight hundred and 92, at twelve o’clock at noon, the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, making due allowances for depreciation by use or otherwise, and to be paid at their office in the city of Wheeling, W. Va. sixty days after due notice and proofs of the same shall have been made by the assured and received at said office, in accordance with the terms and provisions of this policy hereinafter mentioned, unless the property be replaced or the company shall have given notice of their intention to rebuild or repair the damaged premises.
“(1) If this insurance is procured upon an application, survey, plan, or description of the property herein insured, whether referred to or not in this policy, such application, survey or plan, or description shall be considered a part of this contract and a warranty by the assured; and 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 an over valuation, or any misrepresentation whatever, either in a written application or otherwise; or if the assured shall have or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon; or if the above mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied without notice to and consent of this company in writing; or the risk be increased by the erection or occupation of neighboring buildings, or by any means whatever within the control of the assured, without the assent of this company indorsed hereon; or if it be a manufacturing establishment, running in whole or in part, over or extra time, or running at night; or if it shall cease to be operated without special agreement indorsed on this policy; or if the property insured, or any part thereof, shall be alienated by sale or otherwise; or if any part thereof shall be alienated by sale or otherwise; or if the property be sold or transferred, or any change take*650 place in the title oi’ possession whether by legal process or judicial decree or voluntary transfer or conveyance; or if this policy shall be assigned before a loss without the consent of the company indorsed hereon; or if the interests of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy; or if the assured shall keep gunpowder, fireworks, nitroglycerine, phosphorus, salt peter, nitrate of soda, petroleum, naptha, gasoline, benzine, bensole or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid or chemical oils without written permission in this policy — then, and in every such case, this policy shall be void.”
“(4) If the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property, for the use and benefit of the assured, or if the building insured stands on leased ground, it must be so represented to the company, and so expressed in the written part of this policy; otherwise, the policy shall be void. When the property has been sold and delivered or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on such property shall immediately terminate. Goods held on storage must be separately and specifically insured.”
“(7) In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, without reference to the solvency or the liability of the insurers; and it is hereby declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner.”
“(9) Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the secretary of the company, and, within thirty days thereafter, render a particular account of such loss, signed and sworn to by them stating whether any and what other insurance has been made*651 on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interest therein, for what purpose and by whom the building insured or containing property insured, and the several parts thereof, were used at the time of the loss, when and how the fire originated, and shall also produce a certificate, under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the assured) stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured, to the amount which such magistrate or notary public shall certify. The assured shall, if required, submit to an examination or examinations, under oath, by any person appointed by the company, and subscribe to such examinations when reduced to writing, and shall also produce their books of the account and other vouchers, and exhibit the same for examination at the office of the company, and permit extracts and copies thereof to be made. The assured shall also produce certified copies of all bills and invoices, the originals of which have been lost, and shall exhibit all the remains of the property which was covered by this policy, damaged or not damaged, for examination, to any person or persons named by the company. In case of loss on property held in trust or on commission, or if the interest of the assured he other than the entire and sole ownership, the names of the respective owners shall be set forth together with their respective interests therein. If this policy is made payable in case of loss to a third party, or held as collateral security, the proofs of loss shall be made by the party originally insured, unless there has been an actual sale of the property insured. All fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy.”
The defendant filed its plea under the statute, saying, in general terms, that it was not liable to the plaintiff, as in said declaration was alleged. The defendant also filed
Statement No. 2. “B. A. Woolpert, Plaintiff v. The Franklin Insurance Company of Wheeling, W. Va., Defendant. The defendant files the following additional statement with his plea, specifying the particular clause, condition, or warranty in the policy contained in respect of which a failure or violation is claimed to have occurred. In the policy sued on, it is provided as follows: ‘Statement: Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the secretary of the company,
As to this statement it appears in evidence that proof of loss was furnished by the plaintiff to the insurance company, defendant, and no objection was ever made to the proof of loss by defendant, which must be regarded as a waiver of all objection.
Statement No. 3. “B. A. Woolpert v. Franklin Insurance Company. Statement No. 3. The defence in the above ease being, with other things, that the action can not be maintained because of the failure to perform and comply,
The plaintiff replied generally to defendant’s plea, and joined issue with defendant, and plaintiff files with his plea the following statement, specifying matter upon which he relies and intends to rely in waiver, estoppel, confession, and avoidance of matter set up by defendant in his statement:
Statement. “(1) That, at the time said policy was procured, plaintiff informed defendant’s agent, from whom he procured the policy sued on, that he desired aud intended to take out additional insurance on the goods covered by said policy; that he asked defendant’s agent to see that the policy was properly prepared; that defendant’s agent promised to do so, and did prepare and deliver the policy sued on; that defendant’s agent told plaintiff he could take out additional insurance on the goods covered by the policy sued on; acting on this permission, plaintiff took out a policy in the Manchester Fire Assurance Company for $700.00, and one in the Northern Assurance Company of London for $500.-00; that plaintiff is an unlettered man and can not read or write the English language, and he so informed the defend
“(2) That said proof of loss was, in the judgment of plaintiff', the fair cash value of said goods, and less than they had cost him.”
Replication. "B. A. Woolpert v. The Franklin Insurance Company. The plaintiff' replies generally to defendant’s plea No. 2, and joins issue with defendant on said plea. The plaintiff files with his replication the following statement, upon which he relies, and intends to rely, in waiver, estoppel, confession, and avoidance of matter set up by defendant in his statement:
“Statement: That, within the time required by said condition of the said policy sued on, he furnished defendant with a statement in writing of the property destroyed, giving him the best description in his power of the said property, making it as fair and accurate as under the circumstances could be made, the books of said plaintiff having been destroyed by said fire; and that defendant accepted said statement and proof of loss, and made no objection thereto. B. A. Woolpert.
“Taken, sworn to and subscribed to by B. A. Woolpert before me, in open court, this 2d day of December, 1893. Jno. M. Daniel, Clerk.”
Replication. “ Woolpert v. Franklin Insurance Company. Plaintiff replies generally to defendant’s plea, and files with his said replication the following statement, showing matter upon-he relies, and intends to rely, in waiver, estoppel, confession, and avoidance of matters set up by defendant in his statement No. 3:
“Statement: That, at the time plaintiff procured from*656 the defendant the said policy sued on, no inquiry was made of him by defendant as to whether the property covered by said policy was incumbered by deed of trust or otherwise, and he m-ade no statement in regard thereto, nor w;as he aware that it was necessary so to do, but he did not conceal the same, as the agent of the defendant prior to the taking out of the policy sued on wrote the deed of trust to J. Garland Hurst, trustee, mentioned in defendant’s statement, took the acknowledgment thereof, and delivered the same for record in November, 1891, and, after same was recorded, withdrew said trust from the clerk’s office, and delivered the same to the plaintiff; that, before and long after the said policy sued on was issued, the defendant was fully aware of said deed of trust; also, that said deed of trust on its face is void, and of no binding force.” — Which statements and replication were properly sworn to, and filed.
On the 18th day of February, 1896, the case was submitted to a jury, which on the 19th resulted in a verdict in fav- or of the plaintiff for the sum of nine hundred and eighty dollars. A motion was made by the defendant in arrest of judgment, and for a new trial, which the court took time to consider, and on the 17th day of March sustained said motion, set aside the verdict, and awarded a new trial, and the plaintiff excepted, took several bills of exception, and obtained this writ of error.
It will be perceived that condition No. 1 of the policy, among other things, provides that if the property insured, or any part thereof, shall be alienated by sale or otherwise, or if property be sold or transferred, or any change take place in the title or possession, whether by legal process or judicial decree or voluntary transfer or conveyance, or if the interest of the assured in the pi’operty, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not properly stated in the policy, in every such ease the policy shall be void. And in condition 4 it is provided that “if the interest of the assured in the property be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company, and so expressed in the written part of the pol
It is, however, earnestly insisted by the defendant in error, that, the plaintiff in error having taken policies of insurance in other companies subsequent to the time of obtaining the policy from the defendant in error, without the consent of the defendant in error written on the policy, in compliance with the first condition of the policy, the said policy should be void. It is, however, contended by the plaintiff' in error that, while it is true that he attempted to take out policies of insurance in- two other companies subsequent to the time of obtaining his policy from the defendant, they were void; and, further, that these subsequent policies were taken or attempted to be taken by the plaintiff* in error with the knowledge and consent of the agent of the defendant in error, and for that reason the policy obtained from the defendant in error was not rendered void thereby. It appears to be conceded that the policies taken by the plaintiff in error subsequent to the policy taken out from the defendant in error were void and invalid, and the
It is a general principle of law that, in order to avoid a policy on account of a subsequent insurance against an express condition therein, it must appear that such subsequent insurance is valid, and can be enforced. If it can not be enforced, it is no breach of the condition of the prior policy. In that case the authorities seem to have been collated by Judge An-
During the progress of the trial, the plaintiff asked several instructions to be given by the court to the jury, and among them were the following: “Instruction No. 4. The court instructs the jury that if they believe from the evidence that, when the plaintiff' applied to the agent of the defendant for the policy of insurance sued on, the agent of the defendant told him he could take out additional insurance in other companies, and plaintiff', in pursuance of such permission, did afterwards take out the policies in the Manchester Fire Insurance Company and the Northern Insurance Company, then the omission or failure of said agent or defendant to indorse the said permission or the assent of the defendant company on the policy sued on will not avoid said policy.” Instruction No. 5, is in the words and figures following: “Instruction No. 5. The court instructs the jury that although they be
Now, can we sanction the action of the trial court in rejecting the above stated instructions, asked for by the plaintiff’, and in giving the last named instruction, asked for by the defendant? I think not. In considering
In the case of Coles v. Insurance Co. (decided by this court, Nov. 23, 1895) 41 W. Va. 261 (23 S. E. 732) it was held that the jury, under the instruction of the court, must determine from the facts of the case the existence, nature, and extent of the power and authority of the agent of the insurance company. If a general agency exists, it is prima facie coextensive with the requirements of the business at the given time and place. Such general agent may waive forfeitures and conditions in the policy, notwithstanding a provision therein that no agent has such power. So, in the case of Insurance Co. v. Wilkinson, 13 Wall. 222, it was held that “insurance companies who do business at a distance from their principal place of business are responsible for the acts ©f the agent within the general scope of the business intrusted to his care, and no limitation of his authority will be binding on parties with whom he deals which are not brought to their knowledge.” See, also Deitz v. Insurance Co. 31 W. Va. 851 (8 S. E. 616) as to powers of agent authorized to procure policies. In the case of Coles v. Insurance Co. supra, Holt, President, delivering the opinion of the Court, says: “The insurance agent, as thus distinguished from the broker, is ordinarily held to be a general agent of the company. Miller v. Insurance
The judgment of the circuit court is reversed, and this Court, proceeding to render such judgment as should have been rendered, enters judgment upon the verdict of the jury, with costs, etc.