Grubbs v. Nat'l Life Maturity Ins. Co

• Decision Date: 17 June 1897
• Citation: 94 Va. 589,27 S.E. 464
• Court: Virginia Supreme Court
• Parties: GRUBBS v. NATIONAL LIFE MATURITY INS. CO. SAME v. UNION CENT. LIFE INS. CO.

27 S.E. 464

(94 Va. 589)

GRUBBS

v.NATIONAL LIFE MATURITY INS. CO.

SAME

v.UNION CENT. LIFE INS. CO.

Supreme Court of Appeals of Virginia.

June 17, 1897.

Pleading—Oyer—Assumpsit—Contracts—Seal— Corporations—Insurance—Action on Policy.

1. As a rule, the right to crave oyer of papers mentioned in a pleading applies only to deeds and letters of probate and administration.

2. A corporation may make a contract without the use of a seal in all cases in which this may be done by an individual.

3. The mere presence of what purports to be the seal of a corporation on a contract that would be valid and binding though not under seal, unaccompanied by anything to show that the company's officers intended to or did affix the corporate seal, is insufficient to have anyeffect on the apparent character of the contract, and does not render demurrable a declaration thereon in assumpsit.

4. Under Code, § 3211, a motion may be maintained for judgment for money due on an insurance policy, and the notice of motion takes the place of both the writ and the declaration; but, when plaintiff elects to bring a different form of action, the declaration filed must conform to the rules governing in the form of action adopted.

Error to circuit court of city of Richmond.

Separate actions by one Grubbs against the National Life Maturity Insurance Company and the Union Central Life Insurance Company, respectively. From judgments for defendants, plaintiff brings error. Reversed.

Pollard & Sand and D. C. Richardson, for plaintiff in error.

Christian & Christian, for defendants in error.

CARDWELL, J. These cases are before us upon writs of error to a judgment of the circuit court of Richmond city. The action in each case is assumpsit upon a policy of insurance issued to William A. Grubbs, now deceased; and the defendant craved oyer of the policy sued on, and demurred to the declaration, in which demurrer the plaintiff joined. The circuit court sustained the demurrer and dismissed each suit on the ground that the policies are sealed instruments, upon which an action of assumpsit will not lie.

At the lower left-hand corner of the policy in the first-named case there are impressed the following words: "The National Life Maturity Ins. Co. began business May 16, 1883. [Seal];" and upon the policy in the other, in the same position, the words: "Union Central Life Insurance Company, Cincinnati, Ohio. [Seal]" Above the impression, in the first case, the policy is signed on the right-hand side, "H. Browning, President, " and on the left, "Geo. E. Eldridge, Secretary, by L. E. Albert;" and in the other case the policy is signed on the right, "R. S. Rust, Vice President, " and on the left, "E. P. Marshall, Secretary." Each policy concludes: "In witness whereof, " etc. (the company) "has, by its president and secretary, signed and delivered this contract, " etc. There is nothing contained in either policy to indicate that the seal of the company was affixed or authorized to be affixed thereto by the officers signing for the company.

The declarations do not allege, in terms or in effect, that the policies were sealed instruments, but they are declared on as simple promises to pay to the beneficiary, upon the death of the person to whom issued, or to him at a prior period of maturity, a specified sum of money, and alleging the death of the insured, the fulfillment of the conditions of the policy, etc.

As a general rule, the right to crave oyer of papers mentioned in a pleading applies only to deeds and letters of probate and administration, not to other writings, and only applies to a deed when the party pleading re lies upon the direct and intrinsic operation of the deed. Langhorne v. Railway Co., 91 Va. 369, 22 S. E. 159. But, if it be conceded that the defendants had the right to crave oyer of the policy sued on, the question whether or not it is a sealed instrument, intended and issued by the company as such, since it is not averred in the declaration that it is a sealed instrument, is one of fact, to be presented at the hearing by proper motion or plea, but not by a demurrer to the declaration.

"It is now a rule well settled throughout the United States that a corporation may make a contract without the use of a seal in all cases in which this may be done by an individual." 1 Mor. Priv. Corp. § 338. It is not infrequently the case that contracts of insurance are made and issued without the...