Deitz v. Providence-Washington Ins. Co.
| Decision Date | 14 December 1888 |
| Citation | 8 S.E. 616,31 W.Va. 851 |
| Parties | DEITZ v. PROVIDENCE WASHINGTON INS. CO. |
| Court | West Virginia Supreme Court |
Submitted June 15, 1888.
Syllabus by the Court.
In an action by a husband, for the use of his wife, on a policy of insurance, which policy described the property insured as the plaintiff's, and contained a provision that, if the insured is not the absolute owner of the property, it must be so expressed in writing in the policy, otherwise the insurance as to such property shall be void; the declaration was in the form prescribed by our statute, (section 61, c 125, Code;) the plaintiff, at the instance of the defendant filed a particular statement of the facts he expected to prove at the trial, among those facts he stated that the insured property belonged to his wife, and that he so informed the agent of the defendant at the time the insurance was procured, but that said agent, contrary to his instructions, and without his knowledge, made out the policy in his name, instead of that of his wife; the defendant then demurred to the declaration and this statement held, (1) if the defendant desired to test the legal sufficiency of the plaintiff's case as thus presented his demurrer was the proper proceeding; (2) the plaintiff had the right to sue on said policy in his own name for the use of his wife; and (3) the circuit court improperly sustained said demurrer.
Where a contract, not under seal, is made by an agent in his own name, for an undisclosed principal, either the agent or the principal may sue upon it, and parol evidence is admissible to enable the principal to show that he is the real contracting party.
An agent of an insurance company, authorized to procure policies of insurance and forward applications for acceptance to the company, must be deemed the agent of the company in all he does in preparing the application, or in any representation he may make as to the character or effect of the statements therein contained; and this rule is not changed by a stipulation inserted in the policy subsequently issued, that the acts of such agent in making out the application shall be deemed the acts of the insured. [1]
Error to circuit court, Kanawha county.
Knight & Couch and Sam. Littlepage, for plaintiff in error.
Wm. A. Quarrier, for defendant in error.
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 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 has brought this writ of error.
The plaintiff contends that the court erred in dismissing the action. The defendant insists that the action of the court was right, because the facts set out by the plaintiff in his special statement show 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 representation 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 this insurance or any renewal is based."
The important question is whether or not, according to the facts thus appearing, the plaintiff has any right to maintain this action. I think this question is properly raised by the defendant's demurrer to the declaration and the plaintiff's statement filed in support thereof. The statement, being a specific averment of the facts intended to be proved to sustain the action, must be considered a part of the declaration; and if it so modifies or contradicts the general averments of the declaration as to show that the plaintiff has no cause of action, it would be vain and useless to put the plaintiff to the proof of them, because that would be in effect to call upon him to prove facts which when proved would defeat his action. The demurrer at this stage of the proceedings is analogous to a motion to dismiss on the plaintiff's opening statement of his case, or according to the practice in this state of moving the court to exclude the plaintiff's evidence. Oscanyan v. Arms Co., 103 U.S. 261; Dresser v. Transportation Co., 8 W.Va. 553; Schwarzbach v. Union, 25 W.Va. 622. Regarding the declaration, the insurance policy, and the special statement together, as containing the facts on which the plaintiff founds his claim, does he show a right to recover in this action? The defendant insists that the plaintiff's remedy is in a court of equity to reform the contract of insurance and correct the mistake in the policy. It is no doubt true that he has this remedy, but I do not think that it is his only remedy. It is a well-settled rule of law that where a contract, not under seal, is made by an agent in his own name, for an undisclosed principal, either the agent or the principal may sue upon it; the defendant, in the latter case, being entitled to be placed in the...
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