Wolpert v. Northern A&sur. Co.

• Decision Date: 09 April 1898
• Citation: 44 W.Va. 734
• Court: West Virginia Supreme Court
• Parties: Wolpert v. Northern A&sur. Co.

44 W.Va. 734

Wolpert

v.Northern A&sur. Co.

Supreme Court of Appeals of West Virginia.

Submitted February 12, 1898

Decided April 9, 1898.

1. Insurance Previous Insurance Void Policy.

Where a party applying for a policy of insurance fails to in form the insurance agent to whom his application is made that he already has taken out insurance on the property, if such insurance already taken out is void, this fact will not operate to release said second policy. (p. 738).

2. I nsuranc e Application Interest of Insured Policy.

If an insurance company elects to issue its policy of insurance against a loss by fire without any regular application, or without any representation in regard to the title to the property to be insured, it cannot complain, ^ifter a loss has occurred, that the interest of the insured was not correctly stated in the policy, or that an existing incumbrance was not disclosed. (p. 739).

3. Insurance Deed of Trust-Sole Ownership.

The fact that at the time a policy of insurance is obtained upon a stock of goods the insured has already executed a deed of trust on said property is not inconsistent with sole ownership of said property, nor does it make the cestui que trust a joint owner. (p. 739).

Error to Circuit Court Jefferson County.

Action by B. A. Wolpert against the Northern Assurance Company in assumpsit on a policy of insurance. From a judgment for plaintiff, defendant brings error.

Affirmed.

T. C. Green, for plaintiff in error.

Geo. Bailor and McDonald & Beckwith, for defendant in error.

English, Judge:

This was an action of trespass on the case in assumpsit brought by B. A. Wolpert against the Northern Assurance Company of London, a corporation, to recover the sum of five hundred dollars on a policy of insurance dated the 2d day of January, 1892, with legal interest thereon from the 17th of February, 1892, for loss in respect to the property insured by said policy caused by fire about the 17th of February, 1892, at Charlestown, Jefferson county, W. Va. The defendant for plea said it was not liable to the plaintiff as in said declaration was alleged, and also filed statements under the statute specifying certain clauses and conditions of the policy which the plaintiff had failed to comply with, and by reason of which failure was not entitled to recover. The plaintiff replied generally to defendant's plea, and specially as to said statement. The defendant filed a second plea and statement, which was demurred to, and the demurrer overruled. The plaintiff replied specially, and issue was joined the "eon. The cause was submitted to a jury, and resulted in a verdict for the plaintiff for six hundred and fifty-two dollars and fifty cents; and thereupon the defendant moved the court in arrest of judgment and for a new trial, which motions were overruled. The defendant excepted, and judgment was rendered upon the verdict, and the defendant applied for and obtained this writ of error.

During the trial the defendant asked the court to instruct the jury as follows:

"Instruction No. 1. The court instructs the jury that if they believe from the evidence that the property covered by the policy sued on issued by the defendant was personal property, and that at the time said policy was issued said property was incumbered by a chattel mortgage or deed of trust without the knowledge or consent of the defendant or its agent indorsed on said policy or added thereto, then they must find for the defendant."

"Instruction No. 5. The court instructs the jury that if they believe from the evidence that the plaintiff, B. A. Wolpert, at the time he applied to the agent of the defendant for insurance on his property, had other insurance thereon, to wit, $800 in the Franklin Insurance Co. of Wheeling, by policy dated April 20, 1891, and $700 in the Manchester Fire Assurance Co. of Manchester, England, policy issued on the 20th day of August, 1891, and that said policy of insurance in the Manchester Assurance Co. for $700 existed without knowledge or consent on the part of defendant or its agent, and was not provided for by an agreement indorsed on or added to said policy of insurance, then they must find for the defendant, whether said policy in the Manchester Assurance Company was valid or not.

"Instruction No. 6. The court instructs the jury if they believe from the evidence that, at the time the policy sued on was issued upon the personal property of the plaintiff, there existed upon it, without the knowledge or consent of the defendant or its agent, a deed of trust, then the interest of the insured was not that of unconditional and sole ownership, and the plaintiff cannot recover in this case."

To the granting of these instructions the plaintiff objected, the court sustained the objections, and the defendant excepted.

At the instance of the plaintiff the court gave the jury the following instructions:

"Instruction No. 1. If the jury believe from the evidence that the policy issued to the plaintiff by the Manchester Co. was a void policy, or one upon which there could be no recovery, then the failure of the plaintiff to inform the defendant of the issuing of the policy sued upon or the taking out of said policy in the Manchester Co. cannot affect the plaintiff's right to recover in this case.

"Instruction No. 2. If the jury believe from the evidence that, at the time the plaintiff applied for insurance upon the stock of goods, he informed the agent of the defendant company that he had taken out previous insurance in the Franklin and Manchester Ins. Cos., then the failure of the agent of the defendant to indorse this fact upon the policy cannot avoid the policy sued on."

To the granting of these instructions the defendant objected, which objection was overruled, and the defendant excepted.

The action of the court in refusing the instructions asked for by the defendant, and in giving the above instructions prayed for by the plaintiff, and in refusing to set aside the verdict and grant a new trial, and in entering judgment in favor of the plaintiff, is assigned as error. The defendant in the additional statement riled with its plea claimed that the plaintiff could not maintain its action by reason of its failure to perform and comply with, and the violations of, certain clauses, conditions, and warranties in the policy sued on, and specified the following failures to have occurred, to wit: Concealing or misrepresenting, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof; not truly stating the interest of the insured in the property on which the policy was taken; that the entire policy, unless otherwise...