Miller v. Ins. Co.

• Decision Date: 23 July 1875
• Citation: 8 W.Va. 515
• Court: West Virginia Supreme Court
• Parties: Miller, use «&c. v. Insurance Company.

8 W.Va. 515

Miller, use «&c.

v.Insurance Company.

Supreme Court of Appeals of West Virginia.

July 23, 1875.

1. Generally, in 00808 where there is a real conflict in the testimony of

witnesses as to a material fact directly involved in the issue, and the determination involves the credibility of the contradicting witnesses, the finding of the jury upon the fact will not be disturbed by the court; and such finding of the jury will not be disturbed by (he appellate; court where it has been approved by the court below. And in such ease, where there is a demurrer to the evidence, and the court below, which saw and heard such contradicting witnesses (who are the demurree's witnesses) give their evidence, renders judgment in favor of the demurree, generally? the appellate court will not disturb such judgment, by reversing it.

2. A demurrer 10 evidence wit lid. raws from the jury, the proper triers

of facts, the consideration of the evidence by which they' are to be ascertained, and the party whose evidence is thus withdrawn from its proper forum is entitled to have it most benignly interpreted by the substitute, lie ought to have all the benefit that might have resulted from a decision of the case, by the proper forum.

8. Upon a demurrer to evidence in ascertaining the facts proved, directly or by inference, the court must not be unmindful of the effect of a demurrer to evidence. By it the demurrant allows, at the least, full credit to the evidence of the demurree, and admits all the facts directly proved by. or that a jury might fairly infer from, such evidence. And in determining the facts inferrible, inferences most favorable to the demurree will be made in cases of grave doubt.

This was a supersedeas to a judgment of the circuit court of Ohio county, rendered on the 15th day of December, 1873, granted by a Judge of this Court, on the petition of the Franklin Insurance Company, the defendant below. The action was instituted in the name of Isaac Miller, on the 28th day of May, 1872, who sued for himself and for the use of Luther E. Magee, David McConnell and L. V. Applegate," late owners of the steamboat called 'Wash. Sentell.'" The action was in form assumpsit, upon a policy of insurance, No. 972, issued by the defendant Company to the plaintiff Miller, whereby an insurance for the sum of $2,000 was effected, in the name of said Miller, upon said steamboat for the period commencing at noon on October 24, 1871, and ending at noon on October 24, 1872," with permission to navigate the Mississippi and tributaries, except the Missouri and Arkansas rivers." The annual premium stipulated to be paid on account of said policy was §360.

It is not deemed necessary to set out said declaration or policy in full. On the 2d day of November, 1872, the defendant appeared, and, on its motion, the judgment entered in the office was set aside, and thereupon the defendant pleaded " that it did not assume upon itself in manner and form, as the plaintiff in his declaration against it has alleged, and of this it puts itself upon the country and the plaintiff doth the like."

On the 22d day of May, 1873, a jury was sworn to try the issue joined, and, having heard the evidence, the defendant filed a demurrer to the same, and the plaintiff joined therein; whereupon the jury rendered a verdict for the plaintiff, in case the judgment should be given for the plaintiff on the demurrer to the evidence, for the sum of $1,230.64, subject to deductions of $490.77 and $358.20; and in case the judgment should be for the defendant upon the demurrer to the evidence, then for the defendant.

On the trial of the cause the plaintiff, to support the issue on his part, introduced the depositions of L. E. Magee and P. A. Barker, certain protests as to the loss of said steamboat Wash. Sentell, policies of insurance issued on said steamboat by the defendant Insurance Company, the Peabody Insurance Company, the Citizens' Fire and Marine Insurance Company, and the Eureka Insurance Company, and certain notes hereinafter referred to.

The witness Magee, in his deposition, or so much as is deemed material, states, in substance, as follows: That on the 24th of October, 1871, the said Miller and Applegate were the owners of one-sixth, each, of said steamboat, and the said McConnell and Magee one-third thereof each; and that these parties continued to be the owners from that date till the loss of said boat; that Magee was the captain of said boat during all that period; that the said boat, while navigating Cypress bayou, a tributary of Red river, struck a stump, without any fault of the officers or crew, which caused her to spring a leak, from which she sunk in a short time thereafter; that all the means and force at the command of the captain was employed to prevent her sinking; that this occurred January 7, 1872; that the loss was a total loss in the opinion of witness; that a protest, in due form, was made on January 8, 1872, before a notary public of Marion county, Texas, and notice of said loss forwarded by telegraph and otherwise to P. A. Barker and others at New Orleans, and by mail to the defendant Company, at Wheeling, which was received by the same; that in September or October, 1871, which date the witness cannot state positive Barker came aboard the said boat, then lying at the wharf in New Orleans, and demanded payment of a note that had been executed on behalf of the said boat to the defendant Company, for the premium on a policy of insurance theretofore effected on said boat, for the year expiring on or about October 24, 1871; that while these negotiations looking to a settlement of that note were going on, the said Barker proposed to insure the said boat for the year ending October 24, 1872. The testimony of the witness does not disclose clearly what terms were proposed by him for the insurance of the boat. It is stated in the printed record that witness stated that the insurance on the boat was about to expire he " didn't know exactly the time that it did" and that he would have " to look round about some new7 insurance;" that witness did not ask Barker to make arrangements " to take insurance in this Wheeling Company; that witness did not tell Barker u to write to anybody about insurance," and that no further conversation upon this point "occurred at that time." Barker stated at that time that he would communicate with the Company at Wheeling about dividing up the note given for the premium on the policy for the year ending October 24, 1871 the witness having stated to Barker that he was unable to pay the same at that time, and having proposed to " put this note in three notes, making them payable in two, four and six months," " and giving city (New Orleans) acceptances" on same. The witness deposes that Barker stated to him, subsequent to this time, that he (Barker) had a letter from the Company accepting his said proposal, and proposing " that they would re-insure the boat at the limit of $8,000 at the same rates we had before." The letter, which was read to witness by Barker, containing this proposition, will be hereinafter found in the statement of the testimony of Barker. Witness states that "this is the letter Barker showed him," and " the letter he accepted the insurance proposition on."

The witness then states that " the next thing that occurred about this insurance was some dispute about the acceptance on the new premium notes';" that Barker found out, some way or other," witness couldn't tell how it occurred," that Noble and Woods," who had accepted the before named three notes," wouldn't accept the new premium notes, because they considered it a new thing for a boat to give acceptances of premium notes, and they didn't have to do it, and they wouldn't do it." Barker then, witness states, telegraphed " to know whether they would carry the risk without acceptances on the paper," and Mr. Coen answered by letter, that Barker showed witness, that they would. And witness thinks that on the day of this occurrence that the new premium notes were executed. In answer to a question by plaintiff's counsel, the witness gave the following statement connected with the execution of the new notes and of the policy sued on:

" It was in Mr. Barker's office; he had the notes all all wrote up and the policies already in his office, signed up; I signed the notes and he gave me the policies; looking over the policies, there was some things about them that I would have liked to have different if I had thought; I didn't suppose Mr. Coen or any other man would object to writing a new set up and swapping them with me, but the ones I had was good enough, and I took them; then, says Mr. Barker, ' if you think they don't treat you right, you can quit anytime you want to if you pay pro rata rates;' I told him that I would leave the policies in his office for the present; that my boat was loaded and I was ready to go up lied, river until he would hear from these policies in Wheeling, and when lie found out if they concluded to write up a new set in lieu ot them, to take them to my office and leave them;

and if they didn't make that change to take there

we had and leave them there; Mr. Barker, of his own accord, took the notes, as he says."

After the sinking of the boat witness states that he came to Wheeling to effect a settlement with the defendant Company, and that he had several conversations with Mr. Coen, the secretary of the defendant Company; that in one ot these conversations Coen " said he had no risk on the boat, and consequently was not liable; the company was not liable, and his reason for that was he went on to tell me why he did not consider liable; he said he had returned the policies, and he thought we had got insured some other place, and cancelled the policies some time in December, I think he said; after not hearing from us for a long time, he thought we had got insurance in some other company, and he had cancelled the policies; I asked Mr. Coen, if h...