Barber v. Fire & Marine Ins. Co. of Wheeling
| Decision Date | 01 May 1880 |
| Parties | BARBER v. F. & M. INSURANCE CO. OF WHEELING. |
| Court | West Virginia Supreme Court |
1. Where the defendant relies upon the contract limitation, as to the time within which suit shall be brought, in an insurance policy, in defeasance of the action, the practice is to plead it, and not to take advantage of it by demurrer.
2. Where the question of the contract limitation contained in an insurance policy is not presented to the court by the pleadings, it is error for the court to instruct the jury as to the legal effect of such a clause.
3. In the construction of contracts all the provisions thereof shall be taken into consideration and reconciled if possible so that the true intent of the parties to the contract may be ascertained.
4. Where a condition in a policy of insurance provides for an indefinite period to elapse, before suit shall be brought on the policy, and that no suit shall be brought until the thing so provided for is done, to accomplish which may take more than six months without the fault of either of the parties to the contract, and the condition further provides, that no suit on the policy shall be maintained unless commenced within six months next after the loss shall occur, the intent of the parties to the contract was, that the six months limitation should commence to run, when the cause of action accrued, and not before.
Supersedeas to an order of the municipal court of Wheeling, rendered on the 27th day of December, 1877, in an action of assumpsit, in said court then pending, wherein Matthew Barber was plaintiff and The Fire and Marine Insurance Company of Wheeling was defendant, allowed upon the petition of said defendant.
Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling, rendered the order complained of.
Moore, Judge, furnishes the following statement of the case:
Matthew Barber, on the 8th day of September, 1875, sued out of the clerk's office of the municipal court of Wheeling, a writ in an action of trespass on the case in assumpsit, against the president and directors of the Fire and Marine Insurance Company of Wheeling, laying the damages at $1,500.00. On the second Monday in November, 1875, plaintiff filed his declaration at rules. On the 11th day of September, 1876, at a session of said court, came the parties by their attorneys, and on motion of the plaintiff, by his attorney, the case was remanded to rules, to file an amended declaration therein, which amended declaration was filed the second Monday in September, 1876. The suit was brought on a policy of insurance, dated June 5, 1874, made by the defendant in favor of the plaintiff, insuring certain property of the plaintiff, situated in Oxford, Butler county, Ohio, from the 5th day of June, 1874, at twelve o'clock at noon, to the 5th day of June, 1875, at twelve o'clock at noon. The declaration alleges that the property insured was lost or damaged by fire, January 11, 1875. On the second Monday in October, 1876, at rules, came the defendant and demurred generally to the amended declaration, and pleaded non assumpsit, and filed the two following special pleas in writing, viz:
" And for a further and second plea in this behalf to the plaintiff's amended declaration, the defendant says that it was in and by the policy of insurance in the said amended declaration mentioned, expressly provided and mutually agreed between the plaintiff and defendant, that no suit or action against this defendant for the recovery of any claim by virtue of the said policy, should be sustainable in any court of law or chancery, unless such suit or action should be commenced within six months next after the loss should occur; and should any suit or action be commenced against the defendant after the expiration of the aforesaid six months, the lapse of time should be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.
And defendant avers that this action was not commenced until the expiration of the six months next after the loss mentioned in the plaintiff's amended declaration occurred. That the said loss occurred on the 11th day of January, 1875, and that this suit was commenced on the 8th day of September, 1875, and this the said defendant is ready to verify; therefore the said defendant prays judgment if the said plaintiff ought to have or maintain his aforesaid action against it.
And for a further and third plea in this behalf to said amended declaration, the defendant says that in and by the terms of the policy of insurance in the plaintiff's amended declaration mentioned, the said defendant agreed to make good unto the said plaintiff, his executors, administrators and assigns, all such immediate loss or damage, not exceeding in amount the sum or sums insured as specified in said policy, nor the interest of the assured in the property, except as in said policy provided, as should happen by fire to the property specified in the said policy of insurance, from the 5th day of June, 1874, at twelve o'clock at noon, to the 5th day of June, 1875, at twelve o'clock at noon; the amount of the loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proof of the same should have been made by the plaintiff, and received at the defendant's office in the City of Wheeling, in the State of West Virginia, in accordance with the terms and provisions of said policy, unless the property should be replaced, or the defendant company should have given notice of their intention to rebuild or repair the damaged premises.
And the defendant further avers, that a loss by fire is alleged in the plaintiff's amended declaration, to have happened to said property in said policy mentioned, on the 11th day of January, 1875, of which loss it is in said amended declaration alleged, the plaintiff forthwith gave notice to the defendant, and of which loss proofs are alleged in said amended declaration to have been delivered to the defendant by the said plaintiff, and received by defendant at its office, on the 1st day of February, 1875. The defendant further avers, that it was in and by the policy of insurance in the said amended declaration mentioned expressly provided and mutually agreed between the plaintiff and defendant, that no suit or action against this defendant for the recovery of any claim by virtue of the said policy, should be sustainable in any court of law or chancery, unless such suit or action should be commenced within six months next after the loss should occur, and should any suit or action be commenced against the defendant after the expiration of the aforesaid six months, the lapse of time should be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding. And defendant avers that this action was not commenced until after the expiration of the six months next after the loss by fire mentioned in the amended declaration occurred. And this the said defendant is ready to verify, therefore the said defendant prays judgment, if the said plaintiff ought to have or maintain his aforesaid action against it."
On the second Monday in May, 1877, at rules, the plaintiff joined in the demurrer to the amended declaration, and demurred generally to the said two special pleas in which the defendant joined. The court at its session, May 25, 1877, overruled the demurrer to the amended declaration and sustained the demurrer to the said two special pleas. On the 4th day of June, 1877, defendant filed the three following special pleas, viz:
" And for a further and fourth plea in this behalf to the plaintiff's amended declaration, the defendant says that it was in and by the policy of insurance, in the said amended declaration mentioned, stipulated that if after the making and delivery of said policy, during the time in which if a loss occurred by fire to the property insured by said policy, then defendant was bound then to indemnify the plaintiff for such loss to the extent and according to the terms mentioned in said policy; if the premises, the two-story frame building mentioned therein, should be occupied or used so as to increase the risk assumed by the defendant by said policy, that the said policy should then be void. And the defendant avers that at the time when the said policy was made and delivered, the said building was occupied and used as a wagon, buggy, carriage and agricultural implement manufactory; that after said time and before the fire mentioned in the said amended declaration, and within the time during which the defendant was bound by said policy to indemnify the plaintiff as aforesaid, if a loss occurred by fire to the property insured in said policy, but with the stipulation among others that the said policy should be void, if the said risk was increased as aforesaid, the said frame building was occupied and used with the consent of the assured, the plaintiff, Matthew Barber, as such manufactory as aforesaid and also as an organ manufactory, to wit: From the _____ day of September, A. D. 1874, until the fire in said amended declaration mentioned; that by reason of the said building being occupied and used as such manufactory as first aforesaid, and as an organ manufactory as aforesaid at the same time as aforesaid it was occupied and used so as to increase, after the making and delivery of said policy and before the said fire, the risk assumed by the defendant in the said policy, and that the said policy became void at the time the said risk was so increased, to wit: On the _____ day of September, A. D. 1874, and that the said policy continued to be void from that time until and...
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