Morgan v. American Cent. Ins. Co.
| Decision Date | 20 March 1917 |
| Docket Number | 3215. |
| Citation | 92 S.E. 84,80 W.Va. 1 |
| Parties | MORGAN v. AMERICAN CENT. INS. CO. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Suit may be brought and maintained on a fire insurance policy by motion, after due notice thereof, as provided by section 6 c. 121 (sec. 4726), Code of W.Va. 1913.
The following provision in a fire insurance policy is a reasonable condition and is binding on the insured, viz "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void, * * * if this policy be assigned before a loss;" and further provisions therein that, "no officer or agent of the company shall have power to waive any of the provisions or conditions of the policy except such as by the terms of the policy may be the subject of agreement indorsed hereon or added hereto;" and that no officer or agent shall have power to waive any of the conditions, "unless such waiver, if any, shall be written upon or attached hereto," are reasonable limitations upon the agent's powers of which the insured is bound to take notice.
Such policy is rendered void, if a transfer thereof is made by the insured before loss, without such written consent, even though made under oral advice and direction of the agent.
Error to Circuit Court, McDowell County.
Action by R. M. Morgan against the American Central Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed, verdict set aside, and cause remanded for new trial.
Goodykoontz & Scherr, of Williamson, for plaintiff in error.
Strother Taylor & Taylor, of Welch, for defendant in error.
Writ of error to a judgment of the circuit court of McDowell county upon a fire insurance policy.
This suit was instituted by motion made upon notice, as provided by section 6, c. 121 (sec. 4726), Code of W.Va. A motion to quash the notice on the ground that the statute did not apply to a fire insurance policy, and, second, because the notice was not sufficient, was made and overruled. The objection is not well taken. Suit may be instituted by notice and motion, under the statute referred to, in any case where the party is "entitled to recover money by action on any contract." A policy of fire insurance is a contract on which the insured is entitled to recover money, after a loss by fire has occurred, provided he has complied with the terms of the contract. That plaintiff could have maintained assumpsit, and that another statute prescribes a form of declaration therein, does not deny him the right to proceed by motion. The statute authorizing suit by motion was designed to give an additional remedy, not to take away a pre-existing one. It has been held in Virginia, under a similar statute, that a motion may be maintained for judgment for money on an insurance policy. Morotock Ins. Co. v. Pankey, 91 Va. 259, 21 S.E. 487, and Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421, 36 L. R. A. 271, 64 Am. St. Rep. 715.
The notice informed defendant of the day of the term on which the motion would be made, the amount for which he would demand judgment, described the contract on which he would demand judgment by giving the number of the fire insurance policy, its date, by what agent issued, the name of the insured, the location and description of the property covered, that the policy had been assigned by the insured to plaintiff with defendant's consent and approval, the date of loss by fire, and that it was total. We fail to see what further information was necessary to apprise defendant fully of plaintiff's claim, and hold the notice sufficient.
At the conclusion of plaintiff's evidence defendant moved the court to strike it out and direct a verdict for defendant. The court overruled the motion and defendant excepted, and assigns error. But defendant waived the error, if such it was, by thereafter introducing evidence on its behalf. This rule has been so frequently announced by this court that a citation of cases is unnecessary to sustain this holding.
But at the conclusion of the evidence, defendant asked for a peremptory instruction, which was refused, and after the verdict moved for a new trial, which motion was likewise refused, and these rulings are assigned as error. To determine whether these assignments have merits requires a consideration of the evidence. If it is sufficient to sustain the verdict for plaintiff, the instruction was properly refused. If it is not, the instruction should have been given. Diddle v. Continental Casualty Co., 65 W.Va. 170, 63 S.E. 962, 22 L. R. A. (N. S.) 779, Soward v. American Car & Foundry Co., 66 W.Va. 266, 66 S.E. 329, and Butcher v. Sommerville, 67 W.Va. 261, 67 S.E. 726.
The policy was in the form required by section 68, c. 34 (sec. 1430), Code of W. Va.; that is, according to the form used by fire insurance companies incorporated under the laws of the state of New York. It contained this provision:
"This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if any change, other than the death of an insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured, or otherwise; or if this policy be assigned before a loss."
It also contained this further provision, viz.:
"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 subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions 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."
Alonzo Hatfield, to whom the policy was issued, and who was then the owner of the property, sold it to Mrs. R. M. Morgan, the plaintiff, about the 14th of June, 1915, and agreed with her husband, who was her agent in negotiating the purchase, that he would pay for the same amount of insurance on the property which he then held, until the expiration of his policy which expired December 31, 1915. Hatfield conveyed the property to plaintiff on the 7th of July, 1915, and at the same time attempted to assign the policy by placing his signature to the following printed form thereon:
"The interest of Alonzo Hatfield as owner of property covered by this policy is hereby assigned to R. M. Morgan subject to the consent of American Central Insurance Company, St. Louis, Mo."
The principal defense is that defendant never gave its consent to the transfer. It is admitted that J. W. Blakely, defendant's agent who issued the policy, did not indorse its consent on the policy or on any writing attached thereto. But plaintiff insists there was a waiver of the condition requiring that to be done. Whether there was a waiver or not depends upon what the agent said and did, the extent of his authority, and whether the insured had knowledge of the limitations upon his power as agent. Hatfield testified that, about the 28th of June, 1915, he went to Blakely's office with a view of taking up his policy and having another one issued to Mrs. Morgan; that his reason for this was, that the use of the building was being changed from a moving picture theater to a store, and he thought the rate of insurance would be less and he would be entitled to a rebate on the premium already paid, as the policy had several months to run. He said, when he made his business known, Blakely replied:
Although the policy was then in Hatfield's possession, he did not have it with him when that conversation was had, and never thereafter presented it to the agent or requested him to indorse upon it defendant's consent to the transfer. He further says he expected to have an understanding with the agent that he would go home and mail the policy to him and let him issue to Mrs. Morgan another policy and send it to her by the mail. He is corroborated by witness J. B. Dean who was present with him in Blakely's office when the conversation occurred. Blakely himself admits having a conversation with Hatfield in the presence of witness Dean, but he does not admit the correctness of Hatfield's statement of it. He swears he told Hatfield that he would have to have the policy there in order to transfer it himself, and would be glad to transfer it if Morgan would take it. But, disregarding Blakely's testimony altogether, and giving full faith and credit to that of Hatfield, which is...
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