Eagan v. Fire

• Decision Date: 02 May 1877
• Citation: 10 W.Va. 583
• Court: West Virginia Supreme Court
• Parties: Eagan v, ETNA Fire and Marine Insurance Company. (Absent, Johnson, Judge).

10 W.Va. 583

Eagan v, ETNA Fire and Marine Insurance

Company.

(Absent, Johnson, Judge).

Supreme Court of Appeals of West Virginia.

Decided May 2, 1877.

1. A provision in a policy of insurance against fire, declaring the J

policy void unless the premium is actually paid, is waived by" the delivery of the policy without requiring the prepayment of the premium.

2. The courts will enforce the provision in a policy of insurance

against fire, that if the building insured stands on leased ground, it must be so represented to the company, and so expressed in the policy, otherwise the policy should be void, but the benefit of such a provision is waived by an adjustment of the loss made by the company with a full knowledge of all the facts. And, therefore, to an action of assumpsit based on the adjustment, a plea of the breach of such a condition, ought not to be received.

Supersedeas to a judgment of the circuit court of Kanawha county, rendered on the 6th day of June, 1876, in a suit at law, pending then in said court, wherein David Eagan, was plaintiff, and the Etna Fire and Marine Insurance Company of Wheeling, was defendant.

Green President, who delivered the opinion of the Court, sufficiently states the case.

Hon. Joseph Smith, Judge of the seventh judicial circuit, presided below.

Wm. H. Hogeman, for plaintiff in error and defendant below.

Wm. A. Quarrier, C. E. Doddridge, Smith and Knight, ~ for defendant in error and plaintiff below.

Green, President, delivered the opinion of the Court.

This is an action of assumpsit, brought by David Eagan v. The /Etna Fire and Marine Insurance Company, of Wheeling, in July, 1871, upon an alleged adjustment of the damages to be paid, resulting from a fire on the 19th day of January, 1874, which destroyed a certain building insured by the defendant against fire for one year, in a policy of insurance issued by said company, on October 6, 1873. The policy contained the same provisions that are set forth in the policies in the cases of Quarrier v. The Peabody Insurance Company and Quarrier v. The IEtna Fire and Marine Insurance Company, of Wheeling, decided at the present term, and reported infra. There are in the policy two provisions which give rise to the controversy in this case, one is: "If the building insured stand on leased ground, it must be so represented to the company, and so expressed in the written part of the policy, otherwise the policy shall be void." In this case the building stood on leased ground, and it was not, when the policy issued, so represented to the defendant. The policy set out that in consideration of $60, the defendant insured the plaintiff. In point of fact, the premium was not paid when the policy of insurance issued, but a note was given in the manner hereinafter mentioned, which included this premium, and which was not paid till after the fire happened, when the amount of the premium was offered the defendant and it refused to receive it.

Upon the return of the summons, the defendant at rules, put in a plea to the jurisdiction an exact copy of the plea to jurisdiction filed in said cases decided at this term and reported infra. The court on motion of the plaintiff* struck out this plea, and an exception was filed to this action of the court. The court in this did not err, as will appear by the opinion of the Court in said cases decided at this term. The declaration in this case differed materially from the declaration in those cases, it was the same, except that the adjustment instead of being set out in the very faulty manner in which it was set out in those cases, was stated thus:

"That when said fire happened, due notice thereof having been sent the defendant, the said defendant waived all other conditions in the schedule or other part of said policy, and sent promptly two agents on the ground, one Rodgers and one Bishop, by and through whom the loss and damage of the plaintiff occasioned by the said fire, were settled and adjusted at the sum of $1,500, on the 9th day of February, 1874, all of which the said defendant afterwards, to-wit: on the said 9th day of February, 1874, had due notice.

" In consideration whereof, the said defendant afterwards, to-wit: on the day and year last named, undertook and faithfully promised the plaintiff to pay him the said sum of $1,500 on demand."

This count, while in many respects, informal, has in it no substantial defect for which a demurrer to it could be sustained this sufficiently appears from the opinion of this Court in the said cases decided at this term and reported infra. The alligation, of the performance by the defendant of all his obligations for reasons which will hereafter be given, was mere surplnssage upon which no issue could be taken.

The defendant offered two special pleas. The first one set out the provision in the policy above quoted, and alleged that at the date of the policy, and until the fire, the building insured stood upon leased ground of which fact the defendant was wholly ignorant. And that the plaintiff did not represent to the defendant that the ground on which the building stood was leased, and did not cause the same to be expressed in the written part of the contract. The second special plea was that when said policy was executed, the plaintiff had promised and

1A

agreed to pay to the defendant the sum of $60, the payment whereof was the consideration for which said policy was issued, and that the plaintiff, notwithstanding his said promise, did not before the fire, or at any time since, pay the said sum of $60 to the defendant. The first of these pleas would have shown a good defense to the first count in the declaration had it been based on the policy itself, and not on the adjustment; the second of these pleas would not have presented a good defense, even if the first count had been based on the policy itself, but neither of them presented any defense to an action such as this was, based not on the policy, but on an adjustment. The reasons for these conclusions will be apparent, when I consider, as I shall do presently, this case on its merits, as shown by the evidence. These two pleas were, therefore, properly rejected by the court. The defendant then put in the plea of non-assumpsit, and issue was joined thereon. And the jury found for the plaintiff, and assessed his damages at $1,687.50, subject to the opinion of the court on a demurrer to evidence, which was filed by the defendant. The defendant moved the court to set aside the verdict, on the ground that the damages were excessive and not justified by the evidence set out in the demurrer to evidence. Upon the demurrer to the evidence, the court held that the evidence was sufficient to sustain the issue on the part of the plaintiff, and overruled the defendant's motion for a new trial, and entered up a judgment for the plaintiff for $1,687.'0, with interest thereon from June 6, 1876, the day of the rendition of the verdict, and his costs, to which the defendant objected. And from which a writ of error and supersedeas has been awarded it.

The defendant insists that even if the evidence did show that the parties had adjusted the damages to which the plaintiff was entitled by reason of said fire, that the defendant is not bound by said adjustment, because the evidence shows that there was no consideration to support such adjustment, as the policy which was the basis of the settlement, was void and of no effect, the evidence showing that the building insured was on ground not owned by the defendant, the lease having about seven years to run from the date of the policy. The evidence establishes these facts, and also that at the time of the alleged adjustment the supposed agents of the defendant engaged in making the adjustment, knew these facts. As stated before, the building was simply described in the policy as belonging to the plaintiff, but it was not, when the policy was issued, represented to the defendant that the building stood on leased ground, nor was it so expressed, in the written part of the policy, as was required by the above cited provision in the policy, upon the penalty of rendering the policy void. The first question is, under these circumstances, did these facts render the policy void? This depends simply upon the question, will the courts enforce such a provision in the policy? I can see no good reason why such a provision in the policy should not be enforced. It is very obvious why it was inserted. The interest of the assured in using care to prevent the destruction of the building by fire, would obviously be greater if he owned the ground on which, the building stood, as well as the building itself, than if he owned the building only, and had a lease for a short time on the ground. For in such case he might have to pull clown or remove the building from the ground in a short time, and might have but a small interest in its preservation under such circumstances. This provision in the policy appears, therefore, reasonable, and it having been inserted, it became the duty of the defendant to represent the fact that the building was on leased ground to the defendant, that it might be expressed in the written part of the policy. In the case of Kibbe, et al. v. Hamilton Mutual Insurance Company, 11 Gray, 167, a similar provision in a policy was enforced. It is true this insurance was in a mutual insurance company, who had a lien on the ground on which buildings stood which were insured, as well as on the buildings. And the court say that the provision should be enforced, because the defendant's lien was by the plaintiff's not owning the ground, rendeied of but little value. But even where there is no lien, as in the case now before us, the defendant is much interested in the extent of the assured interest in the property, as a trifling imerest in it only, might make the assured careless in its preservation. It is insisted, too, that the policy was void for another reason, the premium was neither paid or...