Bond v. National Fire Ins. Co.

• Decision Date: 14 March 1916
• Citation: 88 S.E. 389,77 W.Va. 736
• Parties: BOND v. NATIONAL FIRE INS. CO.
• Court: West Virginia Supreme Court

88 S.E. 389

77 W.Va. 736

BOND v. NATIONAL FIRE INS. CO.

Supreme Court of Appeals of West Virginia.

March 14, 1916

Submitted February 15, 1916.

Syllabus by the Court.

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.

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.

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.

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 (citing Words and Phrases, Adjuster).

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.

An adjustment of the amount of the loss, and an agreement to pay the amount as adjusted, are two distinct and independent things.

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.

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.

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.

An instruction should not be given when there is no evidence tending to prove the facts upon which the instruction is based.

As a general rule the construction of all written documents given in evidence belongs to the court exclusively.

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.

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 case 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 appears that he has abused the discretion.

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 case, and permission to read the same would be within the discretion of the trial judge.

Error to Circuit Court, Tucker County.

Action by W. C. Bond against the National Fire Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

Cunningham & Stallings and W. K. Pritt, all of Parsons, for plaintiff in error.

D. E Cuppett, of Thomas, and C. O. Strieby, of Elkins, for defendant in error.

MASON J.

On the 2d day of June, 1912, the defendant, the National Fire Insurance Company of Hartford, Conn., issued to the plaintiff, W. C. Bond, an insurance policy, insuring for one year a certain sawmill and machinery, and certain engines, boilers, and other property therein, and also a certain stock of lumber situated in the yard of said sawmill building. The sum of $500 was placed on said building, machinery, etc., and $1,500 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 non assumpsit, 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:

"(a) Company not liable beyond the actual cash value of the property.

(b) Entire policy void if the insured concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof; fraud and false swearing.

(c) Neglect of insured to use all reasonable means to save and preserve the property before and after fire or when endangered by fire.

(d) No suit maintainable until after full compliance.

(e) Fraudulent inventory, violation of the 'iron safe clause.'

(f) Not a true set of books kept, so as to clearly and plainly present a record of the business, purchases, sales, and shipments; a violation of 'iron safe clause.'

(g) Subsequent contracts of insurance.

(h) Ceasing to operate the mill more than 30 days without permission of the insurer."

The defendant contends that these are violations of the promissory covenants of the policy, and that the burden of proving complian ce with these covenants is upon the plaintiff.

Plaintiff's special replication is as follows:

"The defendant will take notice that by way of special replication to the defendant's statements of defense filed in this action, wherein defendant denies liability on the policy sued on, here states that the plaintiff had Col. W. E. Crooks to give immediate notice in writing to this defendant to this plaintiff's said loss by fire in the declaration mentioned and that said defendant acted upon said notice by sending one Arthur Lohmyer to make personal inspection of the grounds on which the sawmill and lumber yard was, and ruins caused by said fire, and the circumstances surrounding the same, which said Arthur Lohmyer did, on the ______ day of December, 1912, and the said defendant on or about the ______ day of January, 1913, proceeded to and did adjust the said loss with the plaintiff whereby it agreed to pay the sum of $______ in discharge of its obligation under the terms of said policy, which said sum the plaintiff agreed to accept in satisfaction of said liability, but the payment whereof, the said defendant hath failed and refused to make, though often requested so to do. And so the plaintiff says that he ought not to be precluded from recovering judgment upon the said policy by reason of the matters and things heretofore pleaded by said defendant in avoidance of said policy."

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 defendant tendered the following rejoinder, No. 2, to wit:

"This defendant, for rejoinder to the special replication herein, says that the amount of the alleged loss occasioned by the fire as claimed by plaintiff was adjusted, but such adjustment was obtained by fraudulent misrepresentations and the concealments of material facts on the part of the plaintiff, and which were unknown to defendant at the time as specified in the statements and amended

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