Bond v. Nat'l
| Decision Date | 14 March 1916 |
| Citation | 77 W.Va. 736 |
| Court | West Virginia Supreme Court |
| Parties | Bond v. National, Fire Insurance Company. |
1. Action Consolidation of Suits Discretion.
The consolidation of suits, in law and equity alike, is a matter addressed to the sound discretion of the court. A defendant is not entitled, as a matter of right, to have such suits consolidated, (p. 742).
2. Appeal and Error Trial Discretionary Ruling View by Jury,
The allowance of a view by a jury is peculiarly within the discretion of the trial court, and its refusal will not be ground of reversal, unless it is clearly manifest that a view was necessary to a just verdict, and that its refusal operated to the injury of the party asking it. (p. 742).
3. Insurance Fire Insurance Replication Adjustment of Loss.
A special replication of a plaintiff suing upon a policy of fire insurance stating that notice of the fire was given to the insurance company, and that the company proceeded to and did adjust the loss with the plaintiff, whereby it agreed to pay the sum of $---in discharge of its obligation under the terms of the policy, which sum the plaintiff agreed to accept in satisfaction of the liability, is defective, as it construes an adjustment of the loss as a promise or agreement to pay the loss. An ascertainment of the loss does not necessarily import a promise to pay it. (p. 754).
4. Same Special Agent '' Adjuster'' Powers.
An adjuster is a special agent for the person or company for whom he acts. His powers and authority are prima facie coextensive with the business intrusted to his care. (p. 749).
5. Same Insurance Adjuster Powers.
An insurance adjuster is ordinarily a special agent of limited authority to ascertain and adjust the loss, having no power merely as such in the absence of some evidence as to his authority to alter the contract, or waive any of its essential conditions, (p. 749).
6. Same Adjustment of Loss Agreement to Pay.
An adjustment of the amount of the loss, and an agreement to pay the amount as adjusted, are two distinct and independent things, (p. 749).
7. Same Fire Insurance Adjustment of Loss Estoppel.
A mere adjustment of a loss, unless such adjustment is accepted by the insurance company with a promise to pay, will not estop the insurer from denying his liability. It is a mere step to ascertain and fix the amount of the loss. The adjustment does not fix the liability in and of itself without promise of payment, (p. 749).
8. Same Fire Insurance Policy Waiver of Conditions Effect.
The waiver by the insurer of one of the promissory covenants of a policy of insurance does not waive other conditions of the policy, unless it clearly appear that such was the intention of the parties, (p. 748).
9. Trial In
Although an instruction correctly states the law, yet if not applicable to the facts and circumstances of the case, it tends to mislead the jury and should not be given, (p. 748).
10. Same.
An instruction should not be given when there is no evidence tending to prove the facts upon which the instruction is based, (p. 748).
11. Same Construction of Writings Question for Jury.
As a genera] rule the construction of all written documents given in evidence belongs to the court exclusively, (p. 749).
12. Appeal and Error Presentation for Review Bill of Exceptions
Rulings on Evidence.
Where a stenographic report of evidence is made part of the certificate of evidence upon a motion for a new trial, and it shows objections to questions or evidence, and rulings of the court thereon, and that such rulings were excepted to, and the particular question or evidence complained of is specified distinctly in the motion for a new trial, or in an assignment of error, or in brief of counsel, so that the appellate court can readily and safely find the particular question or evidence to which the exception relates, the appellate court will consider the matter excepted to, though there is no formal bill of exceptions thereto; but such matter will not be considered without such specification, even though such report of evidence notes such objection and exception, (p. 755).
13. Same Discretionary Biding Examination of Witness Experiments.
Where a witness has testified to the correctness of a paper in evidence, and says that he wrote the paper, and on cross-examination is asked to rewrite certain words with a view of comparison with the paper purporting to have been written by him, and objection is made, it is within the sound discretion of the court trying the ease to determine whether or not under the circumstances the experiment shall be made, and an appellate court will not reverse the judgment of the trial court for either permitting or refusing the experiment to be made, unless it plainly appear thai he has abused the discretion, (p. 755).
14. Trial Argument of Counsel Beading from Statute.
Where a deputy fire warden who is paid a salary out of the state treasury is a witness in a case relating to acts performed in his official capacity, it is not error for counsel in his address to the jury to read as part of his address a statute of this state showing how the money was raised out of which the salary of the officer was paid. This would not affect the merits of the ease, and permission to read the same would be within the discretion of the trial judge, (p. 756).
Error to Circuit Court, Tucker County.
Action by W. C. Bond against National Fire Insurance Company. Judgment for plaintiff, and defendant brings error.
Reversed, and remanded for new trial.
Cunningham & Stallings and W. K. Pritt, for plaintiff in error.
D. E. Cuppett and C. 0. Strieby, for defendants in error.
On the 2nd day of June, 1912, the defendant, the National Fire Insurance Co. of Hartford, Conn., issued to the plaintiff, W. C. Bond, an insurance policy, insuring for one year a certain saw mill, and machinery, and certain engines, boilers and other property therein, and also a certain stock of lumber situated in the yard of said saw mill building. The sum of $500.00 was placed on said building, machinery, etc., and $1,500.00 on the stock of lumber.
On the 6th day of December, 1912, a fire occurred, destroying some of the lumber insured; and the next night, December 7th, another fire occurred, destroying all of the remainder of said property.
After unsuccessful efforts to settle, the plaintiff instituted this suit in the circuit court of Tucker County on said policy. The declaration is in the statutory form. The defendant pleaded non-assumpsit, and filed with the plea several statements of defense. The plaintiff replied generally to defendant's statements of defense, and also filed a special replication to these defenses. Issue was joined on the plea of nonassumpsit, defendant's specifications of defense, and replication thereto, and plaintiff's special replication and defendant's reply thereto.
The defendant's statements of defense alleged the violation of the following conditions of the policy sued upon; namely:
The defendant contends that these are violations of the promissory covenants of the policy, and that the burden of proving compliance with these covenants is upon the plaintiff.
Plaintiff's special replication is as follows:
The defendant tendered the following rejoinder to the plaintiff's replication, No. 1, to-wit: "By way of rejoinder to the plaintiff's Special Replication filed herein, the defendant says that it is not bound by the alleged adjustment or its alleged agreement to pay such adjustment for the facts and reasons stated in its statements of defense filed herein, none of which facts and reasons stated and alleged in its said statements of defense were known by the defendant at the alleged dates of said alleged adjustment, And this the defendant is ready to verify."
The court refused to permit this rejoinder to be filed, and the...
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