Morotock Ins. Co v. Pankey 1

• Citation: 21 S.E. 487,91 Va. 259
• Parties: MOROTOCK INS. CO. v. PANKEY et al.1
• Decision Date: 28 March 1895
• Court: Supreme Court of Virginia

21 S.E. 487

91 Va. 259

MOROTOCK INS. CO.

v.PANKEY et al.¹

Supreme Court of Appeals of Virginia.

March 28, 1895.

Actios on Insurance Police—Judgment on Notice—Conditions of Policy—Temporary Vacation of Building—Title of Insured—Purchase at Judicial Sale.

1. Under Code 1887, § 3211, the notice for judgment takes the place of both writ and declaration, and upon demurrer the only question raised is whether there is matter in the notice sufficient to maintain the action.

2. Code 1887, § 3211, authorizes one to recover judgment after 15 days' notice, in an action on a contract, "before any court which would have jurisdiction in an action, otherwise than under section 3215." Held, that a recovery could be so obtained when the court's jurisdiction was based on Code, § 3214, giving jurisdiction in an action on a fire insurance policy to the circuit court of the county wherein the property lies.

3. Code 1887, § 3251, provides "that, where an action is brought on a policy of insurance, the plaintiff need not set forth in the declaration all the conditions and provisos contained in the policy, nor allege observance thereof or compliance therewith in particulars." Held, that this section does not give jurisdiction, but only provides what the declaration shall contain, and does not exclude the remedy by motion under Code, § 3211.

4. Where judgment by default is set aside to allow defendant to appear and plead, the latter cannot claim that he was not regularly brought into court.

5. If the building insured is an ice manufactory, and the insurance company knows that continuous operation or continuous personal occupancy is not practicable, and it is not contemplated by the insured and insurer, the policy will not be avoided by a vacancy or cessation of operation for 10 days, although the policy declares that this shall render the policy void.

6. A clause in a fire insurance policy requiring the assured to have the unconditional and sole ownership of the property is not violated where the assured has purchased the property at a judicial sale (which is afterwards confirmed), and the insurer knows such to be the case when the policy is assigned to the insured.

7. Any declarations, acts, or course of dealing by the insurers with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force and leading the assured to regard himself as still protected thereby, will amount to a waiver of the forfeiture by reason of such breach, and estop the company from setting up the same as a defense when sued for a subsequent loss; and such waiver need not be founded on a new consideration.

Error to circuit court, Rockingham county.

Action by H. C. Pankey and D. T. Click against the Morotock Insurance Company on a policy of insurance. To a judgment against it, defendant brings error. Affirmed.

Conrad & Conrad, for plaintiff in error.

Sipe & Harris, for defendants in error.

CARDWELL, J. This is a supersedeas, allowed by one of the judges of this court, to a judgment of the circuit court of Rockingham county, on behalf of H. C. Pankey and D. T. Click, defendants in error, against the plaintiff in error, the Morotock (Fire) Insur ance Company, of Danville, Va., a Virginia corporation. The proceeding was on motion under section 3211 of the Code of Virginia, on a policy issued by the plaintiff in error, insuring George E. Sipe, general receiver of the circuit court of Rockingham county in a certain cause pending therein, afterwards assigned, as we shall see, by the consent of the company, to the defendant in error; and the notice upon which the proceeding is brought is as follows: "To the Morotock Insurance Company of Danville, Virginia (a Corporation): Take notice, that on Tuesday, the 10th day of October, 1893, being the first day of the circuit court of Rockingham county, Virginia, we will move the said court for judgment against you for the sum of twelve hundred and fifty dollars ($1,250), with interest thereon from the 15th day of March, 1893, that sum being the amount we are entitled to recover by virtue of a certain contract of insurance made by you on the 3d day of August, 1892, through W. L. Dechert, your agent at Harrisonburg, Va., which contract is policy No. 5, 503 in your said company, and was issued by said agent to Geo. E. Sipe, general receiver circuit court of Rockingham county, and his interest therein was by him, on the 18th day of February, 1893, duly assigned to the undersigned, with your consent and approval; which said contract insured the said Geo. E. Sipe, general receiver, etc., for the term of one year from the 3d day of August, 1892, at noon, to the 3d day of August, 1893, at noon, against all direct loss or damage by fire to an amount not exceeding said $1,250, upon the following described property, to wit: $250.00 on the part one and part three story frame and shingle roof building, used as an ice manufactory, and situate at the north end of Harrisonburg, Virginia; $1,000.00 on the tanks, pipes, engine, boiler, and other machinery and implements for the manufacture of artificial ice, while contained in the above-described building, —which property was on the 7th day of March, 1893, destroyed by fire, of which loss due proof was given you on the said 15th day of March, 1893. H. C. Pankey & D. T. Click, by Counsel. Sipe & Harris, p. q." Upon calling the case, October 14, 1893, the defendant company not appearing, the circuit court entered its judgment in favor of the plaintiffs, and against the defendant, for the sum of $1,250, with interest thereon from the 15th day of March, 1893, till paid, and the costs of this motion. On another day of the same term the following order was entered: "This day came as well the plaintiffs as the defendant by counsel, and, for reasons appearing to the court, the judgment entered in this cause at a former day of this term is set aside. And thereupon the defendant pleaded nil debet, to which the plaintiffs replied generally, and the cause is continued." The defendant on that day filing, with its plea of nil debet, a statement of the grounds of its defense, as provided bysection 3249 of the Code, then at the same term, and on October 28th, the parties by counsel again appearing in court, the order of continuance entered at a former day of the term was set aside; whereupon the defendant, by counsel, demurred to the plaintiffs' notice, and moved to dismiss the action, upon the grounds that the notice was not sufficient under the law; second, that it had not been served as required by law; and, third, that the plaintiffs had no right to maintain their action in the way and manner pursued in this action. But the court overruled the demurrer and motion to dismiss, and permitted the plaintiffs to proceed, and required the defendant to go to trial on the notice, Which resulted in a verdict by the jury for the plaintiffs in the sum of $1,250, with interest thereon from the 17th day of May, 1893, till paid. At the trial the defendant company set up, as its defense to the action, the breach of certain conditions set out in the policy, among the number and those relied on the following: "If the subject of insurance be a manufacturing establishment and it be operated in whole or in part later than 10 o'clock, or if it cease to be operated for more than ten consecutive days, or if the interest of the insured be other than unconditional and sole ownership, or if a building herein described, whether intended for...