Bon Aqua Imp't Co. v. Standard F^ire Ins. Co.

• Decision Date: 10 February 1891
• Citation: 34 W.Va. 764
• Court: West Virginia Supreme Court
• Parties: Bon Aqua Imp't Co. v. Standard F^ire Ins. Co.

34 W.Va. 764

Bon Aqua Imp't Co.

v.Standard F^ire Ins. Co.

Supreme Court of Appeals of West Virginia.

Submitted .Tanrary 23, 1891.

Decided February 10, 1891.

1. Evidence Demurrer to Evidence Practice.

A motion to exclude or strike out evidence is not in all cases the equivalent of a demurrer to evidence, and should not, without modification, be permitted to supersede and replace such demurrer.

2. Insurance Companies Estoppel.

A fire insurance company, which contracts with and receives money from certain persons acting as a corporation under an invalid charter granted under a general law, but acting within both charter and general law, can not, after the property insured has been burned, and the time to pay has come, avoid payment by denying the corporate existence of the insured.

Caldwell § Caldwell for appellant, cited:

10 W. Va. 560, 567; Id. 572; 8 W. Va. 553; Id. 568; Id. 533, 536; Id. 515; Id. 475, p't. 5, Syll., 481, 483, 484; 30 W. Va 27; Wood Fire Ins. §§ 414 notes, 429 note 5; 43 Pa. St. 350; 50 III. 120; 6 Cusb. 342; 42 Pa, St. 188; 3 Grant Cas. 325; 31 W. Va. 841, 851; 28 W. Va. 22; Id. 591; 33 W. Va. 566; 2 Lea 743 p't 5, syll; 12 Ilcisk. 494, 495; 4 Lea 75, 78; Code, c. 125, s. 41; 21 W. Va. 380; 23 W. Va 280; 38 K J. L. 140; 109 Mass. 568; 5 Gray 52; 29 Me. 337; 1 Chitt. PL 4, 5; 2Phill. Ins. 593; 1 Johns. 139; 4 Wend. 75; 10 Mass. 287; 52 Ind. 157; 51 Ind. 246; 66 Barb. 577; 26 K Y. 490.

. W. P. Hubbard for appellee, cited:

Code, c. 125, s. 41; 5 Rand. 329; 32 W. Va. 99; 28 W. Va. 22; 33 W. Va. 56; 12 W. Va. 526; Mor.Corp. 774, 776, 777; 110 IT. S. 81 p't 4, syll.; 19 Ins. L. Journ. 450; 29 W. Va. 98; 33 W. Va. 548. "

Holt, Judge:

This was an action of assumpsit in the Circuit Court of Ohio county, brought by the Bon Aqua Improvement Company, plaintiff below, against the Standard Fire Insurance Company on a policy of fire insurance. The form of declaration was that given in the Code, c. 125, s. 61. On the 20th of April, 1890, defendant appeared and demurred. At September term the court overruled the demurrer. Defendant then moved that the plaintiff be ordered to 'file a more particular statement of its interest in the property insured, in the policy, in the loss sued on, of the nature of its claim and of the facts expected to be proved, which motion was granted; the plaintiff filed such statement; defendant then moved to dismiss, and, if such motion to dismiss should be held to be improper, then defendant demurred to the declaration and the statement aforesaid; and thereupon the Court overruled the motion to dismiss, and also overruled the demurrer. Thereupon defendant filed an affidavit alleging that this suit and one then pending in the same court in the name of R, Dudley Frayser against same defendant were for the same cause of action; that the two policies sued on in the two cases were the same; and that the causes of action in the two suits were identical; and moved that the proceedings in this action be stayed, until the one in the name of It. Dudley Frayser be decided. The court ruled that one of the actions be stayed, but that plaintiff could elect which one to proceed in, and, plaintiff electing to go on with this one, the court refused to stay the ame. Thereupon defendant, under our statute (Code, c. 125, s. 64) pleaded that it is not liable to plaintiff as in said declaration alleged, to which plaintiff replied generally; and on October 3d, 1889, defendant filed with its plea a particular statement of the nature of its defence, specifying plaintiff's failure to comply with certain clauses, conditions and warranties annexed to the policy; and plaintiff filed a statement that it intended to rely on waiver and estoppel on certain facts mentioned. Defendant tendered its plea, verified by affidavit, denying that plaintiff' is a corporation; to the filing of which plaintiff objected, but the court permitted the plea to be filed, and plaintiff replied generally. Defendant excepted to certain parts of the deposition of R. Dudley Frayser, witness for plaintiff, which exceptions the court passed upon, sustaining some and overruling others, asset out in the record.

On May 27th, 1890, the cause came on for trial, the jury was impanelled and sworn, and, the evidence on behalf of plaintiff having been heard, the defendant moved the court to exclude plaintiff's evidence, without assigning any ground therefor, and the court sustained the motion, and the plaintiff excepted. Thereupon the jury rendered the following verdict: "We, the jury, find for the defendant," The plaintiff then moved the court to set aside the verdict, and grant a new trial, accompanying its motion with the affidavit of R, Dudley Frayser, but the court overruled the same, and gave judgment for defendant, and plaintiff excepted, and tendered his bill of exceptions, which was signed by the judge and made part of the record. In this all plaintiff's evidence is set out, defendant having offered none.

I do not now propose to consider the practice of motions to exclude evidence from the jury, further than what may relate to one point involved in this case. Incompetent evidence is often excluded. A document permitted to be read with a promise to prove its execution, which is not done, maybe then excluded; and so in other cases. But our courts can not compel the plaintiff to suffer a nonsuit, although the result is not final. He has a right to have his case go to the jury. But the court can instruct the jury, that, unless they believe from the evidence certain facts, there being as to one or more of them no evidence or no proper evidence, then they should find for defendant. So, in a proper case, the court may virtually instruct the jury if they from the evidence believe etc., then to find for the plaintiff or defendant, as the case may be. But I do not understand the law to be that a motion to exclude or to strike out can, at the option of the party, be made in all eases to take the place of a demurrer to evidence. If it can, it puts it in the power of the party making the motion to get the benefit, without the risk of a demurrer to evidence, and leads to the multiplication of trials at law and to indefinite protraction of the litigation.

The points made by the defendant to justify the rulings of the court are: (1) The plaintiff did not show that the assured, sustaining loss, had forthwith given notice in writing of the loss to the defendant. (2) Plaintiff sues as a corporation, and is therefore put to the proof, and wholly fails to show its corporate existence. (3) Defendant is sued as a corporation, but the case is destitute of evidence on that point. (4) The evidence introduced by plaintiff shows that it, or rather the beneficiary mortgagee, had attempted to commit a fraud on defendant by an attempt to bribe the adjuster.

1. Did the plaintiff, sustaining the loss, forthwith give notice in writing of such loss to the defendant company, or did defendant waive it? The evidence is that notice of the damage or loss by fire was given to the defendant company as soon thereafter as possible, which proof and notice were given in the manner required by the policy. This was the deposition of Frayser. The court, sustaining the exception, suppressed the latter part of the answer "which proof and notice were given in the manner required by the policy." This is a question of fact for the jury, and with such evidence on the point, though general, not stating when, how or to whom or by whom notice was given, we can not undertake to say there was no evidence tending to show notice; especially as there is nothing tending to show want of notice, but, on the contrary, evidence tending to show that it was received or waived, for the defendant acted as though it had received notice, sending its adjuster to the locality on the 13th of September, the fire having occurred August 24th, 1888. It is true we find on the blank furnished assured a provision that such furnishing of the blank, or making up of proofs by the adjuster for the company, is not to be considered as a waiver of any rights of the company; for though the rights may not be waived we can not contract against the effect of certain things on the mind as evidence, though we may be estopped in certain cases. Nor do I see anywhere among the numerous forfending clauses any one providing that a clause against waiver may not itself he waived, or, if there he such, that that also may not he waived. But, be these things as they may, we know from this record of a certainty that the defendant had knowledge of the fire very soon after it took place, and acted on such knowledge; but, more than that, the witness Frayser expressly says: "Notice of the damage or loss by fire was given to the defendant company as soon thereafter as possible." Therefore there was some evidence tending to show even written notice.

2. Is there any evidence tending to show that plaintiff is a corporation, defendant having filed a plea, supported by affidavit, denying plaintiff's corporate existence? The plaintiff professed to be and to act as a corporation under the corporate name of "Bon Aqua Improvement Company," created by and under the laws of the state of Tennessee. The laws of Tennessee authorized and permitted the formation of such private corporations. The plaintiff read in evidence a writing and certificate purporting to be the charter of incorporation. This instrument seems to be a formal charter. Article 1 gives the name; article 2, the general nature of the business to establish an institute of learning and a sanitarium for the benefit of invalids, with power to sell, buy, transact its business etc., in the language of the Tennessee Code. Article 3 gives time of commencement (March 1st, 1887) for the purpose of securing subscriptions to the stock. Article 4 provides that the business affairs shall be managed by a board of directors, five in number, who shall elect a president, secretary, and treasurer. Artice 5 gives...