Houseman v. Home Insurance Co.

• Decision Date: 18 April 1916
• Parties: Houseman v. Home Insurance Co.
• Court: West Virginia Supreme Court

78 W.Va. 203

Houseman

v.Home Insurance Co.

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1916.

Decided April 18, 1916.

1. Insane Persons Actions Next Friend.

An insane person may prosecute an action in his own name by a next friend, when no committee has been appointed for him, or if appointed, has failed to accept or qualify, or is otherwise disqualified to act in that capacity. (p. 205).

2. Same Actions Capacity to Sue Objection.

If contested, the question whether an insane plaintiff may sue by a next friend must be raised and determined before joinder and trial on other issues. Otherwise, the objection comes too late. (p. 205).

3. Insurance Proofs of Loss Waiver Denial of Liability.

Denial of liability on an insurance policy, based solely on an alleged want of unconditional ownership of the property destroyed, operates as a waiver of a provision thereof requiring proofs of the quantum of loss as a prerequisite to an action on the policy. (p. 209).

4. Same Proofs of Loss Exemption of Insured.

The insanity of an insured at the time of the loss, continued thereafter during the limitation period prescribed by the policy for commencement of an action thereon, exempts compliance with the condition regarding proofs of loss. (p. 210).

5. Same Actions on Policies Burden of Proof.

On the insurer against loss by tire rests the burden of proving, when averred in defense of an action on the policy, breach of the condition against misrepresentation or concealment by the insured of the true ownership of the property damaged, or that the ownership thereof then was or since has become other than sole and unconditional. (p. 210).

6. Same Forfeiture Breach of Condition Subsequent Ownership of Property Sole and Unconditional Ownership.

Neither an option nor an invalid or conditional contract of sale of personal property by an insured, with reservation of title until payment of the purchase money, although possession is transferred to the vendee, will constitute a breach of the condition of the policy requiring "sole and unconditional ownership." (p. 212).

(Miller, Judge, absent.)

Error to Circuit Court, Mercer County.

Action by W. H. Houseman, administrator, against the Home Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Sexton & Roberts and Sanders, Crockett & Kee, for plaintiff in error.

Stokes & Sale, for defendant in error.

Lynch, Judge:

On this writ to the judgment for plaintiff rendered upon defendant's demurrer to the evidence, on the trial of an action of assumpsit based on a contract of insurance against damage or destruction by fire of a stock of merchandise and household goods, the meritorious questions concern the right of an insane plaintiff to sue by his next friend, the proof of loss, and, as an element thereof, of the ownership of the property insured.

In Virginia, it has been held that equity has jurisdiction of a suit by an insane person by a next friend, either where no committee has been appointed or if appointed his interests are hostile or inimical to the property rights of the lunatic. Bird v. Bird, 21 Gratt. 202; Houston v. Bland, 81 Va. 588. And, according to 22 Cyc. 1231, the general rule seems to be: where no committee has been appointed, or if appointed refuses to qualify, or has been removed, the action may be prosecuted in the name of the insane by any competent person as next friend, with the sanction of the court, though the lunatic has not been judicially declared insane, if it otherwise appears he is insane. This rule was laid down or approved in Newcomb v. Newcomb, 76 Ky. 544; Isle v. Cranby, 189 I11. 39; Wagner v. Wagner, 56 Neb. 511; Kroebel v. Taylor, 61 Atl. (N. J.) 257; Abbott v. Hancock, 123 N. C. 199; Gray v. Park, 155 Mass. 433; Stanley v. Stanley, 123 Ga. 122. In the Isle case, it was held, upon a motion to dismiss an action so brought, the court may inquire into and determine the question of sanity and where necessary appoint a proper person as next friend to prosecute the action for and in behalf of the actual plaintiff.

Whether because of his mental unsoundness a plaintiff can sue by his next friend is a question which should be raised and determined before trial. Wortliington v. Mercer, 96 Ala. 310; Lamb v. Lamb, 23 Atl. (N. J.) 1009; Bird v. Bird, supra. But by no plea tendered or motion made before joinder on the issues raised, did defendant question the right to maintain this action as brought. Nor did it offer any evidence under the general issue to show the appointment and qualification of a committee for the plaintiff or any proceedings instituted for that purpose either in this State or in Virginia, the latter being the State of plaintiff's residence. On the contrary, it is proved that no such apx)ointment has been made or attempted in either State. As the case proceeded virtually without protest or objection, and without the pretense of any disqualification or impropriety on the part of the next friend, to dismiss the action now, upon the mere suggestion of an irregu- larity, may operate to absolve defendant from any liability under its contract of indemnity. Nor does defendant seem to rely, and it may be said with confidence it does not rely, on this defense to the right to a recovery on the policy. Besides, we see no merit in the proposition.

On the other questions, the case was tried on the general issue and specifications of defensive matters and replies thereto, as permitted by sec. 65, ch. 125, Code. The replies alleged certain grounds which, if proved, operated as waivers or estoppels.

The fire occurred November 25, 1913. It destroyed or damaged the greater part but not all of the property insured. The loss was partial, not total. Plaintiff, George C. Houseman, although competent to contract when the insurance was purchased, was at the date of the fire and thereafter remained and now is insane. What has since occurred in his behalf in respect of the loss was said and done through his son, W. H. Houseman, who prosecutes this action as next friend. He gave notice of the loss to the Flat Top Insurance Agency, through which as soliciting agent the insurance was procured. He received the correspondence addressed to the plaintiff concerning the loss, and answered it, occasionally in his own name, generally in plaintiff's name. Whatever was done to protect the interest of his father he did or caused to be done, or was the active agent in that behalf; and, if any proof was furnished, he secured and delivered the data to Hurt, the adjuster who, for the purpose of ascertaining the amount of the loss, represented the companies carrying risks on the property insured.

As the important. witnesses, Hurt and W. H. Houseman contradicted each other on material questions only as to what was done in respect of the proof of the loss sustained and the ownership of the property. They met soon after the fire. Although Hurt admitted Houseman then furnished him. data, which together with some invoices later delivered were sufficient to enable him to make up the requisite proofs except as to ownership, Houseman testified the proofs were prepared and verified by his affidavit in the presence of Hurt, who took and retained them. Subsequent negotiations had between them by correspondence and interviews, in which counsel for plaintiff in part participated, however, seem to have proceeded as if something remained open for further consideration and concurrence upon the question of the sufficiency of the data and formality of the proofs.

Without undertaking to detail the contents of the numerous letters addressed, received and answered, and the personal discussion at such interviews, it suffices to say that, when summarized, the evidence sufficiently shows that defendant did not question the adequacy of the data except upon the question of ownership. For not only did Hurt as a witness for defendant admit he had information sufficient to enable him to make the necessary formal proof, but also that his custom was to formulate the memoranda at his office in Bluefield, and, except where complications arose, to accept and forward them to the companies carrying risks on the property, all of whom in this instance he represented. December 30, 1913, he wrote plaintiff: '' Referring further to the loss on your stock of merchandise, I beg to advise that when you visit the Flat Top Insurance Agency for the purpose of discussing this matter with them, if you will bring me a complete list of your purchases I will submit the same to the several insurance companies and see what they have to say about the matter. The main trouble regarding your loss is the ownership of the property." "In taking up this loss under a nonwaiver agreement it developed that you had no interest in any of this property, but that your son W. H. Houseman was the sole and unconditional owner. I submitted these facts to the insurance companies, and they have requested me to advise you that if you feel you have any claim against them you are referred to the conditions of your policy contracts, and they hereby give you notice of their intent to insist upon a full compliance with all the conditions of their policy contracts." January 4, 1914, he also wrote plaintiff: "If you will send me a correct list of your purchases from date of your inventory (of July 1, 1913) to time of fire, also correct amount of merchandise returned, I will make up statement of loss and submit it to the companies and advise you of their decision.'' With these requests the testimony satisfactorily shows House- man complied, and that Hurt did what he promised. For, evidently speaking for the companies, he said: "We wanted this assured (the plaintiff) to furnish proof of loss so as to establish the ownership of this property." "We wanted to know if George C. Houseman owned that property or owned interest in it sufficient to consume those policies. That is what we wanted to know. When two ownerships were asserted, we...