Levy v. Union
| Decision Date | 15 December 1905 |
| Parties | Levy v. Scottish Union and National Insurance Company. |
| Court | West Virginia Supreme Court |
1. Appeal Continuance, Refusal Of.
It is well settled as a general rule that the question of continuance is in the sound discretion of the trial court, which will not be reviewed by the appellate court except in case it clearly appears that such discretion has been abused, (p. 551.)
2. Insurance Action on Policy Evidence Award.
Upon an issue involving the question whether there was, or not a verbal submission between the plaintiff and defendant and a written award of arbitrators ascertaining the loss under a fire insurance policy, where another insurance company and plaintiff had in writing submitted their differences, touching the same loss, to arbitrators who had returned a written award, the defendant claiming to be a party thereto by verbal agreement of submission to the same arbitrators and having offered evidence tending to prove that fact, offered in evidence a written award to which defendant claimed it was a party, which award is as follows:
Held: Error to exclude the said written award from the jury, (p. 553.)
3. Insurance Award Evidence.
Such written award being admitted in evidence the plaintiff would be entitled to introduce any evidence, oral or documentary, tending to discredit the award as beingan award between the plaintiff and defendant, or to which defendant was in any way a party, (p. 553.)
4. Trial Ins tru cttons.
It is error to instruct the jury hypothetically upon a state of facts when there is no evidence in the case tending to prove such facts, (p. 555.)
5. Arbitration and Award Revocation.
After an award is macle and published, neither party can revoke the submission without the consent of the other, (p. 556.)
Error to Circuit Court, Kanawha County.
Action by Annie Levy against the Scottish Union So National Insurance Company. Judgment for plaintiff, and defendant brings error.
Reversed.
Watts & Ashby and Chilton, MacCorkle & Chilton, for plaintiff in error.
A. B. Littlepage, Brown, Jackson & Knight, and Angus W. McDonald, for defendant in error.
This is an action brought by Annie Levy against the Scottish Union and National Insurance Company, in the circuit court of Kanawha county, to recover for a loss by fire, on an insurance policy issued by the defendant on a stock of goods in a store house in the City of Charleston. The Insurance on the goods was for $850, the same policy carried $150 on fixtures in the said store. The amount of loss of fixtures was agreed between the parties and paid by the defendant. Plaintiff also carried $1,000.00 insurance on the same stock of goods in the Germania Insurance Company. The loss occurred on the 26th of December, 1898. William Lohmeyer was the agent of the defendant company and R. S. Frazier was the agent for the Germania Company. The agent of the defendant company being called away from the city of Charleston the day after the fire, requested and authorized Frazier the agent of the Germania Company, to act for the defendant company in adjusting the loss. An appraisement was demanded by Mr. Frazier on behalf of both companies. The plaintiff by her attorney, A. B. Littlepage, refused to enter into an appraisement until he was satisfied by Mr. Frazier that both companies would be bound by any award made. Mr. Little page then made out an agreement for submission in waiting. Mr. Frazier objected to signing Mr. Lohmeyer's name to it, but assured Littlepage that Lohmeyer would sign it immediately upon his return. The plaintiff and Frazier each selected an appraiser and said appraisers selected an umpire and proceeded to discharge their duties, and made their award and finding on December 31, 1898. The award showed the actual sound value of the goods in the store at the time of the fire to be $663.68, and damages on same, including the value of the goods totally destroyed, at $442.92. The liability of the companies respectively, under the award, if all parties were bound by the award, was, the Germania $239.41, and defendant company $203.51. On Mr. Lohmeyer's return to Charleston he offered to sign the paper of submission but the paper was withheld from him by Mr. Littlepage, and he was not permitted to sign it. Tender was made by the defendant company for the amount it claimed to be liable for under the award. Plaintiff refused to accept the same and brought this action.
The defendant tendered seven pleas in writing to the filing of which plaintiff objected. The court overruled the objection and filed the pleas, to which ruling of the court plaintiff excepted. Plaintiff then demurred to each and all of said pleas, which demurrers were overruled. The plaintiff replied generally to each of said pleas and issue was joined thereon. Plaintiff also filed special replication in writing to pleas 5, 6, and 7, to the filing of which replications defendant objected; objection was overruled and replications filed and de- fendant excepted, and entered general rejoinder to each of said replications, and issue was joined.
A jury was impanneled on the 23d day of March, 1900, and on the 27th of March, after a part of the evidence had been heard, plaintiff asked and obtained leave to file an amended statement of facts relied upon in waiver of the matters alleged in defendant's pleas, Nos. 5, 6, and 7, to the filing of which defendant objected, which objection was overruled and the statement filed, to which ruling defendant excepted and moved the court to withdraw a juror and continue the cause on the ground that defendant was surprised by the introduction of new matter in the statement filed, which motion was also overruled and defendant excepted. The jury returned a general verdict for plaintiff assessing her damages at $802.17; and returned certain special findings upon interrogatories asked to be submitted to them by the defendant. The defendant moved to set aside the general verdict because it was contrary to the law and the evidence, and also to set aside the special findings upon the interrogatories propounded to the jury by the court at the instance of the defendant, which motion the court overruled and rendered judgment on said verdict in favor of plaintiff, to which rulings of the court defendant excepted.
Defendant's first plea was simply the general issue. The second set up a submission to an appraisement and award between the plaintiff on the one part and the defendant company and the Germania Company on the other part and a tender under the award of $203.51, the defendant's proportionate part of said awarcl. Plea No. 3 was the same as plea No. 2, except that it alleged the agreement of submission and award to have been between the plaintiff and the defendant alone, and a tender of the amount that it claimed to be liable for under the award, the said $203.51. No. 4 alleged the liability of defendant under the policy to be the $203.51 and tendered the same, Plea No. 5 alleged the failure of plaintiff to furnish proof of loss within sixty days after the fire, as provided in policy, and No. 6 alleged default on part of the plaintiff to submit to examination, under oath, and to produce for examination all books of account, bills, invoices and other vouchers as required by the policy, and Plea No. 7 alleged failure on the part of the plain- tiff to submit the loss to appraisement as provided and called for in the policy.
Plaintiff's principal ground of objection to the pleas was that they were inconsistent, stating inconsistent defenses; this objection is fully met by section 20, chapter 125, Code, where the only exception is the plea of non est factum, where without the leave of the court the defendant will not be permitted to plead any other plea inconsistent therewith. Nadenbousch v. Sharer, 2 W. Va. 285.
Plaintiff's special replication to pleas Nos. 5, 6, and 7 were to the effect that the defendant waived the performance of the several covenants and provisions of the policy in the respective pleas mentioned, and denied liability upon the policy.
During the trial the defendant took four several bills of exceptions. The first bill of exceptions was to the ruling of the court in that, after plaintiff and her other witnesses Beulah Slaughter and Adam B. Littlepage had been fully examined and after the defendant had offered its testimony-inchief given by witness Adam B. Littlepage, R. S. Frazier, R. H. Bell, J. L. Richardson, Annie Bossey and William Lohmeyer, and pending the cross-examination by the plaintiff of defendant's witness Littlepage, recalled for the plaintiff, the court permitted the plaintiff to file "An amx)lification of the plaintiff's statement of facts relied upon to show a waiver of the alleged failure on her part to comply with the conditions of the policy of insurance sued upon, as set forth in defendant's pleas No. 5, 6, and 7." It is insisted by plaintiff in error that the filing of this statement worked a surprise to the defendant which entitled it to a continuance to enable it to meet the matters set up in the statement. The statement filed was but an amplification of the special replications filed to the pleas of defendant No. 5, 6, and 7. In Harvey v. Insurance Co., 37 W. Va. 27, (Syl. pt. 7), it is held: "Under section 66, chapter 125, Code, the court may during the trial permit pl...
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