Mallette v. British-Am. Assur. Co. of Toronto, Canada

• Decision Date: 17 June 1900
• Citation: 91 Md. 471,46 A. 1005
• Parties: MALLETTE v. BRITISH-AMERICAN ASSUR. CO. OF TORONTO, CANADA.
• Court: Maryland Court of Appeals

46 A. 1005

91 Md. 471

MALLETTE

v. BRITISH-AMERICAN ASSUR. CO. OF TORONTO, CANADA.

Court of Appeals of Maryland.

June 17, 1900.

Appeal from circuit court, Washington county; Edward Stoke and David W. Sloan, Judges.

"To be officially reported."

Action by William H. Mallette, to the use of Susan M. Thomas, against the British-American Assurance Company of Toronto, Canada, upon a policy of Are insurance. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before McSHERRY, C. J., and FOWLER, BRISCOE, PAGE, PEARCE. SCHMUCKER, and JONES, JJ.

Ferdinand Williams, Albert A Doub, and Daniel W. Doub, for appellant. Thomas J. Peddicord and J. A. Mason, for appellee.

PEARCE, J.This is an action brought by William H. Mallette, for the use of Susan M. Thomas, as mortgagee, to recover from the appellee $1,150 for the loss of property destroyed by fire. There are three counts in the declaration; the first being upon a verbal agreement to insure certain buildings in Oakland, Md., for the use of Susan M. Thomas, for an amount not exceeding $1,150, for one year from June 21, 1898, in consideration of a premium of $33.75, part of which was then paid, and the residue of which it was agreed should be paid in a few days thereafter, no reference being made in this count to any other terms or conditions of the agreement than those above mentioned. The second count set forth the execution of a written policy of insurance, on the same buildings, in favor of the plaintiff, for the use of Susan M. Thomas, for one year from June 21, 1897, to the amount of $1,150, in consideration of a premium of $33.75 then paid, and a verbal agreement, made shortly before the expiration of said policy on June 21, 181)8, in consideration of the further sum of $33.75 to renew said policy for the same amount, and upon "the same identical terms, agreements, covenants, and stipulations as were contained in said policy, for the further term of one year from June 21, 1898," and alleged that the plaintiff then paid a part of said renewal premium, and promised to pay the remainder in a few days, which payment and promise were accepted by the defendant as satisfactory. Both counts averred, in due form, the loss sustained, and demand for, and refusal of, payment. To both these counts the defendant demurred, and the circuit court for Garrett county overruled the demurrer as to the first count, but sustained it as to the second count. Under leave of court, a third count was then filed, setting forth the execution of the same policy for one year from June 21, 1897, as was set forth in the second count, and in the same language, and then alleged that shortly before June 21, 1898, when said policy was about to expire, the defendant, in consideration of the further sum of $33.75, renewed said policy for another year from June 21, 1898, "on the same terms and conditions as those contained in said written policy, which said renewal was made by verbal agreement between the plaintiff and defendant; and plaintiff paid thereon part of the premium, and promised to pay the balance, which payment and promise were accepted by the defendant as the consideration for said renewal." The loss, demand for, and refusal of, payment was duly set forth. Defendant demurred to this count, also, and the demurrer was overruled. The general issue pleas were then filed, as also pleas specifically denying that the defendant either renewed, or agreed to renew, said policy for any period after June 21, 1898. The case was then removed to Washington county, where a trial by jury was had, and, at the close of the testimony on both sides, the plaintiff offered one prayer, framed upon the theory of the third count, which had been sustained on demurrer, and asking the court to instruct the jury that the facts recited therein, if found by it, constituted a renewal of the policy offered in evidence; and the defendant offered a prayer that there was no evidence legally sufficient to entitle tne plaintiff to recover under the pleadings in the case. The court rejected the plaintiff's prayer, and granted the defendant's prayer, to which action of the court the plaintiff excepted, and has brought this appeal.

We will consider, first, the ruling upon the demurrer to the second count, which may be very briefly disposed of. We are of opinion that this count is defective, if for no other reason, because it fails to set forth with sufficient fullness and clearness the terms, agreements, covenants, and stipulations contained in the former policy, and which were to be inserted in the renewal of the policy.

We come next to the ruling of the court upon the defendant's prayer, by which the jury were instructed that there was no evidence legally sufficient to entitle the plaintiff to recover under the pleadings in the cause. It is always competent, by reference to the pleadings, to ask for the judgment of the court upon their legal sufficiency and effect with respect to the evidence offered, but, before a prayer can be granted withdrawing a case from the jury, the court must assume the truth of all the evidence before the jury tending to sustain the claim or defense, as the case may be, and of all inferences of fact fairly deducible from it; and this, though such evidence be contradicted in every particular by the opposing evidence in the cause. Railway Co. v. Wilkinson, 30 Md. 230; Jones v. Jones, 45 Md. 154. It was argued, as to the first count, that no evidence whatever was offered to sustain it, because, as we understand the argument made, the contract there set out was a contract for original insurance, not; for renewal of an existing policy, while the evidence offered all shows a previous insurance, and shows, or tends to show, an agreement for renewal. But it is wholly immaterial whether the agreement was for original insurance or for renewal, because in either aspect the contract is a contract to insure. As to the second count, which alleges an agreement to renew...