Levy v. Peabody Ins. Co.

• Decision Date: 01 May 1877
• Citation: 10 W.Va. 560
• Parties: Levy v. Peabody Insurance Company, (Absent, Haymond, Judge).
• Court: West Virginia Supreme Court

10 W.Va. 560

Levy

v.Peabody Insurance Company,

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

1. In an action of assumpsit on a policy of insurance against fire,

the declaration alleges that the plaintiff has on his part performed all the conditions of the policy; this must be regarded as meaning such as have not been waived, and if the defendant pleads that a certain condition, specifying it, has been violated by the plaintiff, he may reply that the right to insist on the performance of this condition has been waived, specifying the manner in which it has been waived. And if the declaration alleges specifically the performance of a particular condition, and the defendant pleads non assumpsit, the plaintiff can sustain this allegation by proving that the performance of this particular condition had been waived by the defendant.

2. An adjustment with the assured, after a loss by fire, with a full

knowledge of all the facts, is a waiver of a right on the part of the company to insist on the benefit of a provision in the policy that the obtaining of other insurances on the property, without their consent, should render the policy void, and also of a provision requiring the assured to furnish the company, before it should be liable, with the certificate of a notary public of certain facts.

3. On a demurrer to evidence by the defendant, all his evidence

contradicted by the plaintiff's is waived, as well as all his evidence which is given by witnesses whose credit is impeached, either directly, or by the contradiction of statements made by them of material facts.

This was a supersedeas to a judgment of the circuit court of Kanawha county, rendered on the 30th day of June, 1876, in an action in said circuit court, then pend- ing, in which L, W. Levy, was plaintiff, and the Peabody Insurance Company was defendant,

The supersedeas was allowed upon the petition of the] defendant below.

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

The Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the judgment complained of.

Wm. II. Hogeman, for the defendant below and plaintiff in error.

(See authorities cited by him in the cast following of

Mason v. Insurance Company).

Smith & Knight, Mollohan & Fontaine,: or the plain-tiff below and defendant in error, referred the court to following authorities:

1 Chitty PL, 457, side page; Horton & Hutton v. Townes, 6 Leigh. 58; May v. State Bank of North Carolina, 2 Rob. R., 66; 1 Chitty PL, 551-2, side paging; 5 Rob. Pr., 23; Hooff v. Rollins, 5 W. Va.. 540; Bigelow on Estoppel, 578; Webster v. Phoenix Ins. Co., 36 Wis., 67; Haywood v. National Ins. Co., 52 Mo.., 181; Flanders on Fire Ins., 541-2; West Rockinghan F. Ins. Co. v. Sheets & Co., 26 Gratt., 864; 2 Phillips on Ins., 671;

Green, President, delivered the opinion of the Court.

On June 27, 1874, L. W. Levy, brought an action of assampsit, in the circuit court of Kanawha county against the Peabody Insurance Company, on a policy of insurmce dated March 18, 1873, whereby the defendant insured against fire for one year from that date, to the amount of $1,800, his stock of ladies and gentlemen's furnishing goods, notions, fancy goods, and such other goods as are usually kept in a ladies' and gentlemen's furnishing goods store, in a certain building in Charles- ton, West Virginia. The writ was returnable to August rules, 1873. The defendant then filed a plea to the jurisdiction of the court, which is an exact copy of the plea to the jurisdiction filed in the cases of Quarrier v. The Peabody Insurance Company, and Quarrier v. The AEtna Fire and Marine Insurance Company, of Wheeling, decided at the present term of this court. On motion, the court struck out this plea. This action of the court was right for the reasons assigned in the opinion in said cases, decided at this term. The declaration of the plaintiff was upon the policy itself, which was set out at length in the declaration, and contained the provisions set out in the policies in said cases before referred to, and others of which it is only necessary to quote the following:" If the plaintiff shall have or shall, thereafter, make any other insurance on the property in said contract or policy described, or any part thereof without the consent of the defendant, written on the said contract or policy, then the policy shall be void." The plaintiff in his declaration, alleged that "he had duly kept and performed all the requirements and conditions contained in said policy, and so continued from thence up and till the time of said loss." He also alleges, "that he did also produce and deliver to the defendant at its office in the city of Wheeling, a certificate under the hand and seal of D. C. Gallaher, a notary public, nearest the place of said fire, and who was not concerned in any loss occasioned by said fire, as a creditor, or otherwise, and not related to the plaintiff; that he, the said D. C. Gallaher, had examined the circumstances attending the loss sustained by plaintiff by said fire, and knew the character and circumstances of the plaintiff, and he verily believed that the plaintiff by misfortune, and without fraud or evil practice, had sustained loss and damage on the property insured to the amount of $1,-428.41." The matters set forth above, are by the policy, required to be done by the plaintiff, but no penalty is attached to his failure to do this by the terms of the policy, except that the loss is not payable till these things have been clone. The defendant demurred to the declaration, but has presented to this Court, no grounds on which his demurrer is based. And I see no defect in the declara-tion. The demurrer was properly overruled. The defendant then plead non-assumpsit and issue was joined, he also tendered a special plea in which he set forth the above provisions of the policy requiring the consent of the company to be endorsed on the policy before any other insurance of the property could be made under the penalty of the policy being forfeited, and alleged that," without the knowlege or consent of the defendant, the plaintiff did after the issuing of the aforesaid contract or policy, and before the fire in the declaration alleged, make and obtain other insurances on the property in said contract or policy described, to-wit: $500 in the Nail City Fire Insurance Company, of Wheeling; $700 in the Sunberry Fire Insurance Company, of Sunberry, Pennsylvania; and $500 in the Franklin insurance Company, of Wheeling." To the filing of which plea, the plaintiff objected and the court overruled his objection and permitted this plea to be filed, the plaintiff then offered three several special replications to the defendant's special plea. The first of these special replications, alleged, substantially, that after the defendant had full knowledge of all the facts in his said plea alleged, and after said fire and before the institution of this suit defendant and said three other insurance companies, jointly settled and adjusted said loss of plaintiff at $1,428.41, and then and there apportioned said loss among said companies as follows: to the defendant, $457.09 3-100; to the Nail City Fire Insurance Company, of Wheeling, $285.68 5-100; to the Sunberry Fire Insurance Company, $399.95 12-100; and to the. Franklin Insurance Company, 285.68 5-100. And the said defendant and said other companies agreed among themselves and with the plaintiff, that they would pay to the said plaintiff, their portions of said loss as aforesaid, which the plaintiff agreed to receive and to discharge each of them from farther liability, which agreement has been carried out as to all these companies, except the defendant and it prays judgment, whether the defendant ought, contrary to said adjustment and agreement, to be admitted to say that said policy of insurance is forfeited and void. The second special replication set forth the same facts and adds the further allegation, that upon the happening of the loss the three other companies became and were liable for the whole amount of said loss independent and exclusive of the defendant's liability therefor. The third special replication set out the facts stated in the first, varying the statement only by saying that the plaintiff disputed the correctness of said adjustment and claimed that the true amount of said loss was largely in excess of $1,428.41, and the said defendant and said three other companies in consideration that the defendant agreed to abandon and waive his said claim to additional loss and to accept and receive the amount so adjusted and apportioned in full discharge ot their, and each of their, liabilities on account of said loss agreed then and there among themselves and with the plaintiff that they would respectively pay to the plaintiff the portions of said loss, so respectively apportioned to them aforesaid, which agreement has been carried out and completed by all of said companies except the defendant. These replications the court permitted to be filed and the plaintiff took his bill of exceptions and then rejoined generally and issues were joined. On the trial of the issues the jury assessed the plaintiff's damages at $511.02 subject to the opinion of the court on the demurrer to the evidence which was filed by the defendant. The court held that the evidence was sufficient in law to maintain the issue joined on the part of the plaintiff, and it rendered a judgment in his favor for $511.02, the damages assessed by the jury with interest on same from Jan. 2, 1876, the day the verdict was rendered, and costs. A writ of error was allowed to this judgment.

Assuming for the present, that the three special replications to the defendants special plea, all set forth facts, which if true, would have been a waiver by the defendant of the forfeiture of the policy resulting from the facts set forth in the plea, I shall consider first whether it was proper to permit...