Christian v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 10 November 1959 |
| Docket Number | No. 11048,11048 |
| Court | West Virginia Supreme Court |
| Parties | Everette Waitman CHRISTIAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. |
Syllabus by the Court
1. In an action on an insurance policy, if the plaintiff intends to rely on any matter in waiver, estoppel, or in confession or avoidance of the matter which may have been stated by the defendant in its specification of defense, the plaintiff must file a statement in writing specifying in general terms the matter on which he intends so to rely, in accordance with the provisions of Code, 56-4-22. The plaintiff cannot at the trial or in the appellate court rely on an estoppel or waiver not set forth in his reply.
2. In an action on an insurance policy, the insurer is not precluded from relying upon the falsity of an answer in the application for such policy where it appears that the insured knew at the time it was being written or before signing the application that it was written falsely in order to defraud the insurer.
3. 'Where a specific answer is sought by the insurer in an application for an insurance policy, the fact elicited thereby will be treated as a material one; and if such answer, whether it be treated as a representation or warranty, is untrue, the policy will ordinarily be forfeited.' Syl. Kent v. General American Life Insurance Company, 120 W.Va. 58 .
Sanders, White & Daugherty, Ben B. White, Jr., George A. Daugherty, William H. Sanders, Princeton, for plaintiff in error.
No appearance, for defendant in error.
In this action in assumpsit, Everette Waitman Christian sued the State Farm Mutual Automobile Insurance Company in the Circuit Court of Wyoming County on a policy of insurance, covering a Mercury automobile. From a judgment for the plaintiff, the defendant prosecutes this writ of error.
The automobile in question was purchased by the plaintiff in November, 1956, from Welch Lincoln-Mercury Sales Agency of Welch, McDowell County, West Virginia. The unpaid balance on the purchase price, amounting to $2,600, was financed through Commercial Credit Corporation. Marvin King, who made the sale on behalf of Welch Lincoln-Mercury Sales Agency, called Margaret E. Foster, insurance agent of the defendant, by telephone at her place of business in Welch. As a result of the telephone conversation, the plaintiff called upon Mrs. Foster, who issued the insurance policy in question.
With reference to the loss, the plaintiff testified that about 11:30 a. m., on December 17, 1956, he was proceeding alone in his automobile on Big Cub Creek Road in Wyoming County, when, at a certain point on Coal Mountain, the right rear tire became flat; that he parked his automobile on the right side of the highway; that while he was in the process of changing tires, the 'car crawled over the jack', and the automobile went over a steep and rocky hill or bank at the right of and below the highway, resulting in practically a complete loss of the vehicle; that thereafter he walked about two miles to a beer tavern where he telephoned for a wrecker; that he returned promptly to the scene; and that in the meantime the jack had disappeared.
Mrs. Margaret E. Foster filled in the blanks on the application for insurance. One of the questions on the application was: 'Has any insurer cancelled or refused to issue or renew automobile insurance to the applicant or any member of his household within the past three years?' This question was answered in the negative on the application, and the plaintiff signed the application with such answer appearing thereon. The plaintiff testified that he told Mrs. Foster 'I had had insurance canceled', but that 'she told me that she would put no on there, that it would go through anyhow.' On the other hand, Mrs. Foster testified that she undertook to impress Christian with the vital importance of the question, but that he nevertheless stated to her that he had never had automobile insurance cancelled or refused.
French Lilly of Oceana, in Wyoming County, an agent for the defendant company, testified that 'in the neighborhood of July in 1956', the plaintiff showed to the witness a letter disclosing that the plaintiff's automobile insurance with another company was being cancelled and that thereupon the witness refused to write a policy of insurance on behalf of the defendant company covering plaintiff's automobile. French Lilly further testified that some time thereafter the policy written by Mrs. Foster was mailed to him, inasmuch as plaintiff also resided in Wyoming County, and that he thereupon mailed the policy to the plaintiff, not at that time being aware of the fact that the policy was written for the same man who had been refused insurance previously by the witness. In the meantime, the plaintiff had an accident involving a collision of his automobile with a cow. This was brought to the attention of the witness at his office at Oceana, and he went to plaintiff's home to call upon him. It was then for the first time that French Lilly, according to his testimony, identified the plaintiff as the man for whom he had previously refused to write automobile insurance. The witness testified that he asked the plaintiff whether or not he had hold Mrs. Foster that previously he had been refused insurance, and that the plaintiff replied that Mrs. Foster 'never asked me that question.'
During December, 1956, the home office of the defendant company at Charlottesville, Virginia, received a confidential credit report relating to the plaintiff. As a consequence thereof, the home office wrote a letter to the plaintiff, dated December 20, 1956, three days after the automobile was demolished, notifying the plaintiff that his insurance policy would be cancelled as of January 2, 1957, and advising him to obtain proper insurance in the meantime with another company. At the time the letter of December 20 was written, the home office did not know of the accident involving the cow, or of the occurrence which resulted in the destruction of the automobile, and did not know of the fact that the application made by plaintiff contained a false statement of facts. Later, however, the home office learned of the false answer contained in the application; and on March 8, 1957, wrote a letter to the plaintiff detailing the facts in relating to the false answer contained in the application, and notifying the plaintiff that his insurance policy was rescinded. A refund of the premium was made to the plaintiff. The defendant offered the letter of March 8 for introduction in evidence, the plaintiff objected, and the court refused to permit the introduction of such letter as a part of the evidence to be considered by the jury. The defendant, however, in order to save the point, took testimony in relation to the letter outside the presence and hearing of the jury, and the letter was made a part of the record.
After the completion of the testimony at the trial before a jury, the defendant made a motion for a directed verdict in its favor, which motion was overruled. Thereupon, the court made the following statement to the jury:
The final order contains the following language:
'* * * Thereupon the Court and the jury heard the evidence on behalf of the plaintiff and that on behalf of the defendant, and at the conclusion of all the evidence, it was agreed and the Court ruled and announced its ruling to the jury that the question of liability was a question of law for the Court to decide and that the jury should inquire only as to the market value of the automobile in question and the jury retired to its room to consider said inquiry of damage and after a time returned with the verdict in the following words and figures:
'Whereupon the verdict of the...
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