Maupin v. Scottish Union & Nat'l Ins. Co

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON
Citation45 S.E. 1003,53 W.Va. 557
Decision Date06 June 1903

45 S.E. 1003
53 W.Va. 557


Supreme Court of Appeals of West Virginia.

June 6, 1903.


1. Pleas in abatement and bar may be filed at the same time. The pleas in abatement should be first tried; but, if the party filing them goes to trial on the merits under the pleas in bar without asking a trial on the pleas in abatement, he waives such pleas.

2. A clause in a fire insurance policy, called the "iron-safe clause, " that the insured make an inventory of his stock of goods and keep books correctly detailing purchases and cash and credit sales and keep them in an iron safe, or away from the store building when closed for business, is reasonable and valid. It is a promissory warranty.

v 2. See Insurance, vol. 28, Cent, Dig. 853.

3. In such iron-safe clause is a provision that noncompliance with it by the insured shall forfeit the policy, and that "agents of this company have no authority to waive these conditions." No oral evidence is admissible of an oral waiver of such clause by a soliciting agent of the company before or at the time of the issuance of the policy.

4. It is a fundamental rule in courts of law and equity that oral evidence of prior or contemporaneous oral agreement or conversation cannot be received to vary or contradict a valid written contract, unless in cases of fraud or mutual mistake. This rule applies to policies of fire insurance.

5. If a defendant, giving no evidence, moves the court to exclude the plaintiff's evidence as not sufficient to warrant a verdict for the plaintiff, or to direct a verdict for him, and his motion is overruled, and this court reverses the judgment for that cause, it will not remand the case for another trial, but will enter judgment for the defendant, or, as it chooses, direct the circuit court to do so, unless satisfied that it will work injustice.

6. If the Supreme Court holds that a verdict for the plaintiff is without sufficient evidence, or contrary to the evidence, and reverses the judgment for that cause, it will grant a new trial or enter judgment for defendant.

Poffenbarger, J., dissenting. (Syllabus by the Court.)

[45 S.E. 1004]

Error to Circuit Court, Mason County; P. A. Guthrie, Judge.

Action by C. W. Maupin against the Scottish Union & National Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed. Judgment rendered for defendant.

Charles E. Hogg and H. R. Howard, for plaintiff in error.

Rankin Wiley, for defendant in error.

BRANNON, J. C. W. Maupin sued the Scottish Union & National Insurance Company in the circuit court of Mason county, and recovered upon the verdict of a jury a judgment for $2,340, from which the company sued out a writ of error from this court.

The defendant filed a plea in abatement of another suit pending. The trial upon the merits under other pleas was had as if in ignorance of that plea in the case. No trial was had upon it in advance of the main trial, and this is assigned as error. The Code, c. 125, § 21, gives leave, as a change from common-law pleading, to plead in abatement and bar at the same time, but requires that the issue on the plea in abatement be first tried, because that may alone end the case. Though a plea in bar to the merits is, at common law, a waiver of a plea in abatement, it is not under that statute. But the defendant put in that plea. He had right to insist upon its trial or waive it. He ought to have brought it to trial, and by not doing so and going to trial on the merit pleas it waived the plea in abatement. 1 Cyc. 136; 1 Ency. Pl. & Prac. 33.

The policy contained what is called the "iron-safe clause, " reading: "It is expressly stipulated, that the assured shall, before this policy shall take effect (provided no inventory has been taken within six months), make an inventory of the stock to be covered hereby, and shall keep books of account correctly detailing purchases and sales of said stock, from and after date of said inventory, both for cash and credit; and shall keep said inventory and books securely locked in an iron safe, or away from the building containing property hereby insured, during the hours that such store is closed for business. Failure to observe these conditions shall work an absolute forfeiture of all claims under this policy. This policy is void if there are any terra cotta flues in the building. Agents of this company have no authority to waive these conditions." The following is also in the policy: "This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and con ditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." The defendant filed pleas averring that Maupin did not comply with the demands of the iron-safe clause, as he failed to make an inventory or keep books of purchases and sales as required by it, and did not keep the books in an iron safe, or away from the building containing the stock of goods insured, when closed for business, and that they were consumed by its destruction by fire, and not in a safe, and were not open to the examination of the company after the fire. The plaintiff filed replications to said pleas, stating that the company had waived compliance with said clause; and under these replications gave oral evidence to the effect that a local agent prepared and mailed the policy to him; that upon its receipt he went to the local agent of the company, and told him that he would not have the policy with that clause in it; that he could not live up to it, and that he had no safe in his store; and that he kept only a book of debit and credit with customers, and that he did not keep books showing purchases made by him of goods, and detailed lists of cash and credit sales; and that then this agent told him that he could invoice once a year, and that it would be "all right"—in short, as claimed, dispensed with compliance with that clause— and that with this understanding he (Maupin) accepted the policy. To this evidence of waiver the defendant objected. It is not necessary to use much space to show that such a clause is valid and binding. It provides for the business record of the doings in the store in regular course of business as means by which the company can examine the extent of loss and its liability—the best (generally the sole) means of its ascertainment; and it provides for the security of these documents by means of an iron safe, or being away from the store building when closed for business. The covenants contained in the clause are promissory warranties in the law of insurance. Waranties are of two kinds—affirmative and promissory. Affirmative consists of representation in the policy of facts; promissory are those that require that something shall be or shall not be done after the policy takes effect. If the affirmative warranty is false, it avoids the contract; and, if a promissory warranty is not complied with, it avoids the policy. 15 Am. & Eng. Ency. L. (2d Ed.) 919, 920; May on Ins. § 157. The particular clause in question is a promissory warranty. Scottish Union v. Stubbs, 98 Ga. 754, 27 S. E. 180; Goldman v. North British, 48 La. Ann. 223, 19 South. 132.

The decisive question is whether the oral waiver of the agent dispensed with that

[45 S.E. 1005]

clause. Here is a written contract, free from ambiguity, requiring no evidence to impart its meaning. It says that certain things shall be done. Oral evidence is used to make another contract; to prove that the things which it says shall and must be done were not by the policy, as it was in fact, to be done—a flat contradiction. Evidence of the conversation—the interlocution—at the time of the contract to contradict what the writing stipulates as to the essence of the contract; to make it say the opposite of what it does say. This court condemned that doctrine in Crislip v. Cain, 19 W. Va. 438, and Knowlton v. Campbell, 48 W. Va. 294, 37 S. E. 581. Where is safety to be found if the written testimony of the solemn actions of men can thus be annulled? Unstable, frail memory, willful perjury, will thus dominate. "When parties have deliberately put their engagements into writing in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between them, or of conversations or declarations at the time when it was completed or afterwards, as it would tend in many instances to substitute a, new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected." 1 Greenl. § 275. "It is a fundamental rule in both courts of law and equity that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid instrument, unless in cases where the contracts are vitiated by fraud or mutual mistake." Northern Assurance Co. v. Grand View, etc.. 183 U. S. 308, 22 Sup. Ct. 133, 46 L. Ed. 213. That case applies this rule to insurance policies just the same as to other written instruments. So does Insurance...

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