Galloway v. Standard Fire Insukanck Co.
| Citation | 45 W.Va. 237 |
| Court | West Virginia Supreme Court |
| Decision Date | 19 November 1898 |
| Parties | Galloway v. Standard Fire Insukanck Co. |
Where application is sent by an applicant or his agent from one state to an insurance company of another, and there accepted, and a policy of insurance is there issued, it is a contract of the of the state where issued. (p. 239).
Generally, the place of the acceptance of a proposal is the place of contract. (p. 240).
A deposit of a contract in a post office addressed to the party to whom it is to be delivered is a delivery at the post office, (p. 240).
A debtor must seek his creditor to pay him, unless the creditor be out of the State. (p. 241).
If a policy of insurance provides that it shall not be valid until countersigned by its agent at a certain place, it is a contract of the state where so countersigned. (p. 240).
Where a policy of insurance provides that suit must be brought upon it within six months after loss by fire, and there is a promise by the company, within the six months, to pay the policy, and the whole period runs out before the company refuses to pay, such promise is n waiver of the limitation, and estops the company from pleading it, and is not a mere suspension of time from the promise until the refusal to pay. (p. 242).
Error to Circuit Court, Ohio County.
Action by C. F. Galloway against the Standard Fire Insurance Company. Judgment for defendant, and plaintiff brings error.
Reversed.
White & Allen, for plaintiff in error. W. P. Hubbard, for defendant in error.
Brannon, President:
This is an action by Galloway agains the Standard Fire Insurance Company to recover for a loss by fire of a stock of goods insured by a policy issued by the company, resulting in a finding by the court trying the case in lieu of a jury in favor of defendant, and judgement for it. The plaintiff sued out a writ of error. The policy contained a clause that no suit upon it should be sustained unless commenced within six months after the fire, and the company pleaded this contractual limitation in bar of the action and the plaintiff tendered three replications, which were rejected. The case turns upon whether the circuit court was right in the rejection of those replications. Only two of them need be considered, Nos. 2 and 4.
Replication No 2 seeks to meet the plea of limitation by stating that the policy was made in the state of Virginia; that it was countersigned at Wheeling, W. Va., but not then completed by delivery, but was later delivered to Rice, an insurance broker of Richmond, Va., and by him delivered to Hut ton, an insurance agent at Warren ton, Va., and was by him delivered to Galloway at Warrenton, and that it thus was a completed Virginia contract for insurance of property situated in Virginia, and to be performed in Virginia; and that the company was not a corporation created by Virginia; and that certain statutes of Virginia, specified, prohibited foreign corporations from doing business there without complying with certain regulations, one being the appointment Of an agent upon whom process might be served, and that this the defendant had not done; and that, because there was no such agent, the plaintiff was prevented from suing within the six months. This replication would maintain that, the policy being a contract made in Virginia, its statute law requiring the appointment of such agent became a part of the contract, as if inserted therein, just as much a part of the policy as if it had in words said that the six months limitation should apply only "in case the company shall appoint, as required by the law of Virginia, an agent to accept service therein of process in actions against it." This raises the question whether the policy is a Virginia or West Virginia contract, for, if not a Virginia contract, very plainly the Virginia statute cannot be an element in it. I think, for several reasons, it is a West Virginia contract. May, Ins. § 66, says: See 2 Pars. Cont., 582. And 3 Am. & Eng. Enc. Law, 551, says that the general rule is "the place of the contract of insurance is the place where it was accepted." Tested by this law, when the proposal, if forwarded by an agent of the company, resident in Virginia, was accepted at the home office, and a policy issued and mailed to the agent in Virginia, to be delivered by him to the applicant, it would be a West Virginia contract, because the acceptance was there; but, to make this stronger, we may eliminate the consideration that the policy was sent to a Virginia agent of the company, to be delivered in Virginia to the insured party, as this replication does not aver that Rice or Hutton was agent of said company, and the policy has a clause declaring him not an agent of the company, and the policy is a part of the declaration; and thus we have simply the case of some one as plaintiff's agent sending to the Wheeling home office an application, and its acceptance there, and the issuance there of a policy, and its delivery to the applicant's agent in Richmond, which, under above law, makes it a West Virginia contract. The place of acceptance, not delivery, decides where the contract is made, as a general rule. And, if delivery were important, a delivery to the mail, addressed to the applicant or his agent, would be the final delivery. 2 Pars. Cont, 582; Hartford Steam-Boiler Inspection & Insurance Co., v. Lasher Stocking Co., (Vt.) 29 Atl., 629; 4 Am. & Eng. Enc. Law (2d Ed.) 202, note 1. Nothing-more remained to be done to complete the contract. By delivery to the mail, the company, in effect, delivered it to a third party to be delivered to the insured, and lost control over it. An excellent discussion of this subject is that by Justice Clifford. Desmazes v. Insurance Co., (U. S. Cir. Ct., Mass.) 7 Fed. Cas., 529. That it was completely signed and countersigned by the officers at Wheeling-is recited in the policy. So it is, under the facts and law, a West Virginia contract. But, to make this plainer, it declares that it should "not be valid until countersigned by the duly-authorized agent of the company at Wheeling, W. Va." It shows that it was countersigned there. It then was completed and took effect. Judge Anderson, in Insurance Co. v. Warwick, 20 Grat., 628, says this shows it to be a contract where countersigned. The place of the performance of the final act, which is to give effect to the contract by its own word, is conclusive to show where the contract was made. A policy of insurance declared that the contract "shall not take effect until the first premium shall have been paid." It was held to be a Missouri contract, though signed by the company in New York, because the payment of premium was in Missouri. Assurance Co. v. Clements, 140 U. S., 226, (11 Sup. Ct. 822.) A policy issued by a company in New York, and there signed, but not to be valid until countersigned by an agent in Massachusetts, was held a Massachusetts contract. Ileebner v. Insurance Co., 10 Gray, 131. Same doctrine, 3 Am. & Eng. Enc. Law, (1st Ed.) 551. These principles are fully stated in Ford v. Insurance Co., 99 Am. Dec, 663, 668. But if it were a Virginia policy, what then? The law requiring an agent's appointment would not be a part of it, because it is a law unto itself, prescribing its own limitation, and contains no exception based on failure to appoint an agent. It is settled that where a contract fixes a shorter limitation than that of the general law, the exceptions in the general statute of limitations do not apply, because the rights of the parties are tested by the contract; and, as it relieves them from the general law, it relieves from its exceptions. Wilkinson v. Insurance Co., 72 N. Y., 499; McElroy v. Insurance Co., 48 Kan., 200, (29 Pac, 478); Riddlesbarger v. Insurance Co., 7 Wall. 386; 2. May, Ins. § 483. And again, if a Virginia contract, and the statute a part of it, it seems to me that the statute could only apply to a suit in Virginia. What has it to do with a suit in West Virginia? If the policy had in words said that suit should be within six months, "unless the company fail to appoint an agent in Virginia," how could it affect a suit here? So I conclude that the Virginia statute has no relation to this suit, and replication 2, setting it up as an excuse for not sooner suing, sets up immaterial, irrelevant matter, and is no answer to the plea of contract limitation. The facts which it states make the policy a West Virginia policy, and exclude the introduction of the Virginia statute. As suit could be brought in West Virginia, what excuse is there for not suing here? If, however, we could say that replication shows a Virginia contract, it would be bad, because the declaration files the policy, which shows itself on its face to be a West Virginia contract, and the replication showing a Virginia contract would be in conflict with the declaration, and be a...
To continue reading
Request your trial