Deitz v. Providence Wash. Ins. Co

• Decision Date: 15 March 1890
• Citation: 11 S.E. 50,33 W.Va. 526
• Parties: Deitz. v. Providence Washington Ins. Co.
• Court: West Virginia Supreme Court

11 S.E. 50

33 W.Va. 526

Deitz.

v.Providence Washington Ins. Co.

Supreme Court of Appeals of West Virginia.

March 15, 1890.

Insurance — Conditions or Policy —Waiver — Authority of Agent — Actions — Pleading— Evidence.

1. Questions which have no bearing on the issue, or a very remote one, and which are calculated to prejudice the minds of the jury, ought to be excluded.

3. Questions which, standing isolated, are irrelevant, ought to be excluded; but if counsel, on their responsibility, as such, should state that they expect to follow them up by testimony of the same witness or others, which will connect them with the case, and show them to be relevant, the court, in its discretion, may allow them to be asked, subject to being ruled out if not so connected. Where there is no promise or intimation by counsel that such further and connecting testimony will be adduced, there is no error in excluding such irrelevant questions.

3. Where the evidence, and not the facts proved, is certified to this court, the rule, very often announced, is that the judgment will not be reversed unless, by rejecting all the parol evidence of the exceptor which conflicts with that of his opponent, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong.

4. If an insurance company refuse to pay the loss, or deny its liability upon independent grounds before any sufficient proof of loss is made, and before the time within which such proofs are to be made, by the terms of the policy, such denial and refusal constitute a waiver of the condition of a policy requiring such proofs.

5. If the agent of an insurance company deputize his clerk to examine certain property and report upon it, and to write out a policy thereon, and the clerk, while intending to write the name of the true owner in the policy, writes that of her husband by clerical error and mistake, occasioned by the accidental circumstance that the husband'sname happens to be before him, such mistake will not defeat the true owner's right to recover.

6. It is not necessary, in order to support a verdict for the plaintiff, that he should prove all the matters set out in the " statement" tiled in connection with the declaration, under section 62, c. 125, Code, but only so much thereof as is necessary to sustain the essential averments of the declaration.

7. No insurance agent can be expected by his company to attend to all the details of his business in person. The company must and should be construed to anticipate the employment of clerks to attend to the office when the agent is absent or sick. When the agent's clerk is authorized and intrusted to examine property, and write out a policy thereon, his contract and knowledge are the contract and knowledge of the agent, and any accidental mistake which he may make is the mistake of the agent, and will be corrected in a court of law in an action on the policy.

8. No false swearing by the plaintiff, no matter what his intent, perpetrated after the writ was issued, can change the rights of the parties or affect the verdict, although the policy contain a clause of forfeiture, in case the assured make any false affidavit with intent to defraud the company.

(Syllabus by the Court.)

This is a writ of error from the circuit court of Kanawha county to a judgment in an action on the case in assumpsit, wherein John K. Deitz, for the use of his wife, Sarah E. Deitz, was plaintiff, and the Providence Washington Insurance Company, now plaintiff in error, was defendant. The case came before this court at a former term, on a demurrer to the declaration, and this court, by an order entered on the 14th day of December, 1888, reversing the court below, overruled the demurrer, and remanded the case. 8 S. E. Rep. 616. The statement of the case, as furnished by Judge Snyder in this court at its former term, will be sufficiently full up to the point where we shall resume it, and trace it along the lines of the present record, down to final judgment. This is an action by John K. Deitz, for, the use of Sarah E. Deitz, against the Providence Washington Insurance Company, brought in the circuit court of Kanawha county. The declaration is in the form prescribed by our statute, (section 61, c. 125, Code 1887,) and alleges that the defendant, by virtue of the insurance policy herewith filed, owes the plaintiff $1,995, for loss in respect to the property insured by said policy, caused by fire on or about April 15, 1887, at the premises described in said policy; and then concludes with a promise to pay said sum, and refusal to do so, as is usual in actions of assumpsit. The defendant demurred to this declaration, which demurrer the court overruled. The defendant then, under the provisions of section 62 of the statute, obtained from the court an order requiring the plaintiff to file a more particular statement in respect to his claim, and the facts expected to be proved by him at the trial. In response to this order, the plaintiff filed a statement under oath, in which, among other things, he stated that Sarah E. Deitz, the person for whose use this action is brought, was at the time said insurance was effected, as well as at the time the loss occurred, the owner of all the property insured; that she was then and still is his wife; that he, acting as her agent, procured the insurance of her property, and informed the agent of the defendant at the time the policy was taken or being made out; that all the property belonged to said Sarah E. Deitz and instructed the defendant's agent at the time to make out the policy accordingly; that said agent, by mistake and oversight, made out the policy after receiving said instructions, and after he (the plaintiff) had left his office, in the name of the plaintiff; that the policy was for some time kept by defendant's agent, and was then handed by him to the said Sarah E. Deitz, and by her laid away until a short time before the fire; and that neither the plaintiff nor said Sarah discovered the mistake until after the fire. The defendant thereupon demurred to the declaration, and this statement filed in aid of it, and also moved the court to dismiss the plaintiff's action, which demurrer and motion the court sustained, and dismissed the action. The plaintiff contended that the court erred in dismissing the action. The defendant insisted that the action of the court was right, because the facts set out by the plaintiff in his special statement showed that he never had any insurable interest in the property, or right of action on the policy.

The policy is in the name of John K. Deitz, the plaintiff, and describes the property insured by it as belonging to him, and makes no mention of any interest in his wife, or of his effecting the insurance as her agent. The policy also contains the following provisions: "If the assured shall make any false representations as to the character, situation, or occupancy of the property, or the interest of assured in the same, * * * or if the property be held in trust or on commission, or by leasehold or other interest, not amounting to absolute or sole ownership, * * * it must be so' represented to the company, and expressed in the policy in writing; otherwise the insurance as to such property shall be void. " And also: " If any person other than the assured shall have procured this insurance to be taken by the company, such person shall be considered the agent of the assured, and not of this company; and this company shall not be bound by any act of or statement made to or by any agent or other person which is not contained either in the policy, or in the written application upon which the insurance or any renewal is based. " Thecircuit court having sustained the demurrer to the declaration, this court reversed and remanded the case. When the mandate of this court was sent down and duly entered, the case was proceeded with by the filing of certain "pleas" by the defendant, em braced in a " statement" without formal conclusion, sworn to by the defendant, to which the plaintiff objected, and the defendant amended, and the plaintiff again objected; but, the objection being overruled, he replied generally, and issue was joined. As the amendment to the original statement by the defendant will appear in discussing the evidence, it is not here inserted, but the original "pleas" or "statement" upon which the issue was made up are here given, as follows. "JohnK. Deitz, for, etc., v. Prov. Wash. Ins. Co. Assumpsit. The defendant, for plea in this behalf, says that the said defendant is not liable to the plaintiff as in said declaration is alleged. And the defendant further says that the said John K. Deitz did not procure the insurance of the property in the policy mentioned as the agent of Sarah E. Deitz, nor did he, when said insurance was procured, represent to the defendant or its agent that he was acting as her agent, nor did he direct that the policy should be made out in her name, nor did he represent that Sarah E. Deitz was the owner of said property, nor was the policy aforesaid issued by the agent of the defendant by mistake or oversight, after having received instructions from the plaintiff as alleged by plaintiff; that no proof of loss was ever made by the plaintiff, or received by the defendant, as required by the terms of the policy, and that section 0 of the policy was never complied with, and that the defendant has never waived the said requirement; that the plaintiff has made false statements and representations to the defendant or defendant's agents in regard to the interest he had in the property insured, and in regard to the ownership thereof, and that he has made attempts to defraud the defendant by false swearing and otherwise, in violation of the provisions of section 3 of the policy, where by the said policy has been rendered null and void; and the defendant gives notice that in further defense to this action, that plaintiff...