Harvey v. Parkersburo Ins. Co.
| Decision Date | 10 December 1892 |
| Citation | 37 W.Va. 272 |
| Court | West Virginia Supreme Court |
| Parties | Harvey v. Parkersburo Insurance Co. |
1.ABATEM EN T PljEAl)I ng.
The rules of strict pleading still apply on demurrer to pleas in abatement, so that material provisions and exceptions in the statute must be averred, (p. 280.)
2. Insurance Company Process.
Chapter 123, Code W. Va., prescribes in what counties of the state suits may be brought, and section 2 reads as follows: "An action may be brought in a county wherein the cause of action or any part thereof arose, although none of the defendants may reside therein." Section 2, c. 124, Code, provides that process from any court, whether original, mesnc, or final, may be directed to the sheriff of any county, except that process against a defendant to answer in any action brought under the second section of chapter 123 shall not be directed to an officer of any other county than that wherein the action is brought, but it excepts from such exception an insurance company, (p. 279.) '
3. Construction of Statute-Cause of Action.
"The cause of action" generally means the breach of duty by defendant complained of, but under section 2, c. 123, it may consist of one or more essential facts, which plaintiff must show to make out his case, and these may be severable, (p. 281.)
4. Insurance Company Payment.
The debtor, unless it be otherwise provided, must, in order to make payment, seek the creditors; and, as against an insurance company sued in the county where the creditor resides, the cause of action, within the meaning of the statute, arises in such county, (p. 281.)
5. Insurance Company Policy Declaration Pleading.
Where in the declaration on a policy of insurance the name of the plaintiff is different from the name of the person to whom the policy sued on appears to have issued, but the variance does not appear on the face of the declaration, such variance can not be reached by demurrer to the declaration, (p. 282.)
6. Insurance Company Policy Declaration Pleading.
When such policy is offered in evidence, and it appears that the person named in the declaration and the person named in the policy are one and the same person, and the mistake in the policy is due to the fault of the defendant, it should not be rejected on his motion, (p. 282.)
7. Continuance Practice.
Under section 66, c. 125, Code, the court may during the trial permit plaintiff to file the special statement of any matter in waiver, estoppel, or otherwise in confession and avoidance, as provided for by section 65, c. 125, Code, as justice may seem to require; but this will not give defendant a continuance as matter of right, but it is within the sound discretion of the trial-court. (p. 282.)
8. Insurance Company Policy Evidence.
Where a policy of fire-insurance is issued without any written application on the part of the assured so far as the facts appear, the assured in offering in evidence the policy, is not required to read with it, as part thereof, a written application produced by the insurer, without proof that it was signed by the assured or the agent of the assured, (p. 283.)
9. Insurance Company Policy.
When a clause in a policy refers to an application relating to warranties, misrepresentations, or concealments, and assumes to make such reaper a part of the policy, and no such paper is shown, the clause which refers to it, and attempts to prescribe its place and effect as a part of the contract, and to determine the consequences of misstatement, must be regarded as inapplicable to the facts of the case, and therefore nugatory, (p. 284.)
10. Insurance Company Policy Estoppel.
Where an insurance policy provides that the books of account of the assured shall be securely locked in an iron safe in his store, during the hours that said store is closed, and with the consent of the agent of the insurance company and the knowledge of the company who do not object, the books are kept at night in the merchant's dwelling-house, the company is estopped from setting up such failure to observe such condition as working a forfeiture of all claims under the policy, (p. 285.)
Merrick $ Smith attorney for plaintiffs in error:
I. Cause of action arose in Wood county. Breach of duty cause of action. 1 Rob. (New) Pra. 358; 3 Am. & Eng. Ency. L. 46 (n. 1); 5 B. & C. 259; 10 How. Prac. 1; 15 N. Y. 505; 70 N. C. 157.
II. Material amendment of pleadings during trial entitles opposing party to discharge of jury and continuance. 28 W. Va. 583, 595.
III. On motion to exclude evidence case should not be re-opened, unless such cause is shown, as would entitle to new tried. 29 W. Va. 537; 6 Munf. 328; 11 Leigh 241; 14 S. E. Rep. 999.
IV. Ida J. Harvey failed to make out her case by offering a policy payable to S. J. Harvey. No assignment shown or explanation of variance made. 29 Am. Dec. 126; 74 Am. Dee. 77; 67 Am. Dec. 120, 131 (note); 1 Greenl. Ev. § 69 (note 3); 16 Am. & Eng. Ency. 114; Law Diet. 695.
V. In order to recover plaintiff must show that immediate no-
tice of loss was given to defendant. 2 Woods Fire Ins. §§ 436, 437, 430; 25 W. Va. 667-8.
VI. Plaintiff could not recover without showing that within thirty days of loss proper proofs were filed with defendant. 25 W. Va. 667-8..
VII. No waiver of proofs by merely investigating and looking at book. 6 W. Va 452; 64 N Y. 136; 30 N Y. 136; 2 Woods Ins. 943.
VIII. Special conditions of policy violated by insured avoid the policy. 1 May Ins. § 157.
IX. Where 'policy specifically makes statements in application warranties, the falsity of any such statements avoid the policy, 1 Wood Fire Ins. § 150; 25 W. Va. 652; 1 May Ins. §§ 156, 159.
Brown, Jaekson § Knight attorneys for defendant in error:
I. The pleas in abatement were bad in substance and in form.
Code, c. 123, s. 2; c. 124, s. 2; 10 W. Va. 507.
II. Where record fails to show existence of application, the pro-
visions in the policy referring to application is nugatory. 133 111. 220.
III. The defendant company is bound by the action of its local agent 21 W. Va. 368; 25 W. Va 622; 31 W. Va. 851; 43 Kan. 497.
IV The statement of matter in-waiver and estoppel fled by plaintiff was no 'part of the pleadings. 21 W. Va. 576.
Y. The defendant was estopped to set up the "Iron Safe" clause. 1 Wood Fire Ins. §90; 25 W. Va. 622; 83 W. Ya. 526; 43 Kan. 497.
This is an action of assumpsit brought in the Circuit Court of Putnam county on the 24th day of December, 1890, by I. J. Harvey against the Parkersburg Insurance Company, of Parkersburg, W. Ya., on a policy of insurance from loss by fire dated July 2, 1890. On demurrer to the evidence by defendant company the court gave judgment against the company for one thousand seven hundred and sixty four dollars and seventy seven cents with interest from May 28, 1891, till paid and costs, on which the insurance company obtained this writ of error. The facts are stated in the demurrer to evidence, which is as follows: "Be it remembered that, upon the trial of this case, the said plaintiff, by counsel, produces to the jury, to maintain the issues on her part, the following evidence, namely, the policy in the declaration mentioned, in the words and figures following. (See page 4 of this record for policy.) Proved by E. W. Harvey, that he was on the first clay of June, 1890, and has ever since been, the husband and agent of the plaintiff, I. J. Harvey, mentioned in said policy, and managed and controlled all her business, and as such was solicited by T. A. Yickers, the agent of the defendant, to insure the property of the plaintiff situated at Liberty, Putnam county, W. Va., and at such solicitation furnished such agent figures for an application for a policy as follows: That the stock, when run down, about one thousand four hundred dollars to one thousand five hundred dollars, and when stocked up, about one thousand eight hundred dollars a general average of about one thousand five hundred dollars; that he had not exact figures at hand, but he believed they were correct; and, on cross-examination, that Yickers asked him if he kept a safe and he said 'No.' Yickers's son then asked him how he kept his books, and he told him he took the daybook and ledger to his house to post them up, and Vickers said,.'AH right.' This memorandum was given to the agent's son in Winfield, about fifteen miles from where the property was, and the answers to the questions asked him were written down on a plain piece of paper, but were neither read to him nor shown to him. He did not think it was on a printed form. He knew nothing more of the policy until he received it of Vickers, the agent, by mail, some time afterwards, and remitted the premium by registered letter, but did not remember whether it was before or after the receipt of the policy, but thinks it was before. That the property insured so owned by the plaintiff consisted of a storehouse and dwelling a few feet apart, connected by a back porch, and was erected in 1887, and was worth about nine hundred dollars. That the furniture insured was worth about two hundred dollars and the stock of goods was worth one thousand four hundred and forty two dollars. That the building and stock were a total loss, and about sixty dollars of the household furniture was saved. That the books, except a small memoranda of the balance of cash on hand each evening during the continuance of the policy in force, and on the night of the fire, were kept each night in the dwelling house, his books being daybook and ledger, and were there at the time of the fire, and were afterwards submitted, some time in August, 1890, to R. J. A. Boreman, secretary of the defendant, who went to Liberty with Vickers, the agent; said secretary going to Liberty to investigate and adjust the loss, said Boreman examining the books and making some extracts therefrom, as he desired. The fire occurred at three o'clock in the morning of August 14, 1890. He was sleeping soundly...
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