Muiileman v. Nat'l Ins. Co. Charles Muhleman

• Citation: 6 W.Va. 508
• Court: Supreme Court of West Virginia
• Decision Date: 17 July 1873
• Parties: muiileman v. national insurance company. Charles Muhleman, who sues eor himself and for the use of C. II. Booth, John Mulrine, W. G. Battelle, Frederick Kimple, Jackson Harrison, George Peppers and C. G. Young, owners of nine-sixteenths of the Steamer Potomac Plaintiff in the action and Defendant in error against The National Insurance Company of Wheeling Defendant in the action, plaintiff in error.

6 W.Va. 508

muiileman

v.national insurance company.

Charles Muhleman, who sues eor himself and

for the use of C. II. Booth, John Mulrine,

W. G. Battelle, Frederick Kimple, Jackson

Harrison, George Peppers and C. G. Young,

owners of nine-sixteenths of the Steamer

Potomac Plaintiff in the action and Defendant in error against The National Insurance Company of Wheeling Defendant

in the action, plaintiff in error.

Supreme Court of Appeals of West Virginia.

Decided July 17th, 1873.

Syllabus.

1. The practice of inserting in a demurrer to evidence the evidence on-both sides, is proper and well established by the authorities.

1. "In such case, the demurrant must be considered as admitting all that can reasonably be inferred by a jury, from the evidence given by the other party; and as waiving all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached; and all inferences from his own evidence, which do not necessarily flow from it."

3. The policy of insurance recites that, "The Company, having been paid, as consideration for this insurance, Charles Muhleman's note for $400, at 9 months the nine-sixteenths interest of said boat is hereby insured, being valued at $18,000." Charles Muhleman, in fact, did not execute his note, but a few days after the date of the policy, and at the delivery thereof to him at the office of the insurer by its clerk, Charles Muhleman, who was the captain of said boat, made and delivered to the clerk of the insurer, for the premium of insurance, the note of the "Steamer Potomac and Owners," and signed "Steamer Potomac and Owners," per Charles Muhleman, Captain," and in lieu of giving his own note, and the same was accepted and received by the clerk for the premium of insurance in lieu of Charles Muhleman's note. Held,

That it was competent for the insurer, by its clerk, to receive and accept the said note for the premium, in lieu of the note of Charles Muhleman, and that by so accepting it, the insurer waived the note of Charles Muhleman, and should be thereby estopped from claiming any advantage in an action on the policy, from the fact that Muhleman did not make and deliver his note as recited in the policy. Held also,

That it is competent to prove such waiver by parol.

4. An insurance company acts and speaks by its officers, and what the officers say and do, when in discharge of their duty as officers, and in relation to the particular duty assigned to them, is evidence against the company.

5. The said policy of insurance contains this clause: "And in case any note or obligation given for the premium on this risk, shall not be paid at maturity, such failure of payment shall terminate this insurance, and said note or obligation shall be considered the premium for the risk thus terminated " Held,

That this clause covers and applies to the note of the "Steamer Potomac and Owners," given and received for the premium as"above stated, and that, on the failure of the payment of the note at its maturity, the insurance ceased, according to the provision of the policy. Held,

Further, that the boat having been lost by fire after the maturity of said note, that the mere voluntary payment of the note with legal interest, after the loss, by Muhleman to the clerk of the insurer at its office, against the expressed wish of the clerk made at the time of payment, did not, of itself, waive the forfeiture of insurance and revivify the policy so as to entitle the insured to recov-er the insurance by reason of the loss of the boat, notwithstanding, the failure to pay the note at maturity. Held,

Also, that in the absence of other evidence, it cannot be inferred from the mere fact, that the note of the "Steamer Potomac and Owners'' was received and accepted as aforesaid, that it was received and accepted in satisfaction and discharge of the premium of insurance.

6. "A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition." Held,

That the evidence in this case does not establish a waiver or estoppel as to the performance of the condition prescribed in the policy, that if the premium on the risk shall not be paid at maturity, such failure shall terminate the insurance.

This is an action of covenant, from the Circuit Court of Ohio county. On the 18th day of September 1867, the Defendant issued to the Plaintiff a policy of insurance on the Steamer Potomac for $5,000, and on which the premium was $400. It is stated in the policy that the Defendant had been paid, as consideration for the insurance, "Charles Muhlenian's note for $400, at 9 months;" but the note received by the Defendant was the negotiable note of " Steamer Potomac and Owners, per Chas. Muhleman, Capt," dated Sept. 18, 1867, and due nine months after date, payable at the First National Bank of Wheeling. The Steamer Potomac was destroyed by fire at Cincinnati, August 6th, 1868. The note was paid Sept. 15th, 1868.

It was stipulated in the policy that in case any note or obligation given for the premium on this risk, should not be paid at maturity, such failure of payment should terminate the insurance, and said note or obligation should be considered the premium for the risk thus terminated. There were six pleas filed; but it is only necessary to consider the fifth and sixth, which are substantially stated in the opinion of the Court.

On the 29th January 1870, after all the testimony in the case had been heard by the jury, the Defendant filed a demurrer to the evidence, in which the Plaintiff joined. And the jury assessed the damages of the Plaintiff at $5,518.33, in case judgment should be given ior the Plaintiff on the demurrer. On the 8th day of April 1871, the Court having considered the demurrer to the evidence and the verdict of the jury thereon, rendered a judgment for the Plaintiff for the said sum, with interest thereon from June 29th, 1870, at the rate of six per cent, per annum, and costs. The evidence is sufficiently stated in the opinion of the Court.

Lamb for Plaintiff in error.

Wheat and Allison for Defendant in error.

Haymond President.

Plaintiff, on the 6th day of February 1869, brought an action of covenant, in the Circuit Court of Ohio county, against the Defendant upon a policy of insurance issued by the Defendant to Plaintiff, on nine-sixteenths interest of the steamboat "Potomac," to navigate the Ohio river between Pittsbugh, Pa., and Louisville, in the State of Kentucky for the term of one year from the 18th of September 1867. And in case of loss, such loss to be paid in sixty days after proof of loss, proof of interest, and adjustment exhibited to the assurers, at the office of Defendant in Wheeling, the company having been paid, as the consideration for said insurance, Charles Muhleman's note for $400, at nine months, the ninesixteenths interest of the boat being valued at $18,000. The declaration does not allege or aver the payment of the $400 premium when it became payable. But it does aver that the steamboat "Potomac," on the 6th of August 1868, while the policy was in full force, and then being in the Ohio river at the port of Cincinnati, was accidentally and by misfortune burned and totally destroyed by lire, and that the Defendant had notice thereof at its office in Wheeling on the 8th day of August 1868, and that proof of the loss was furnished the Defendant within thirty days from the date thereof; and that the Plaintiff, "hath in all things fulfilled and performed, and kept the terms and conditions of the policy of insurance on his part to be kept and performed, whereby the Defendant became liable to pay to the Plaintiff the said sum of $5,000.00, sixty days after the 8th day of August 1868, the date when the proof of loss was so furnished to the Defendant, according to the form and effect of the policy of insurance &c." On the 26th day of November 1869, the Defendant, by its attorney, appeared in Court to the Plaintiff's action, and filed five several pleas in writing, to each of which the Plaintiff filed a general replication, with leave to give special matter in evidence. The three first of the pleas, as they appear in the record, I shall not now notice, and I am not able to see that any material question arises upon them, unless it be the plea of covenants performed I will notice, at present, the fourth and fifth pleas, and only so far as to give their substance. The fourth plea alleges, in substance, that at the execution and delivery of the policy, the Plaintiff made and delivered to the Defendant his promissory note, for the premium or risk specified in the policy, for the sum of $400, bearing date on the 18th of September 1867, and payable nine months after date, at the First National Bank of Wheeling, towit, in Ohio county; and that afterwards, on the 21st day of June 1868, when the said promissory note became due and payable, the same being wholly unpaid, it was duly presented for payment at the said bank, and the Plaintiff did not, nor did any person on his behalf, then and there pay the same. And that in the said policy it was and is provided, that in case any note or obligation given for the premium on the risk therein specified, should not be paid at maturity, such failure of payment should terminate the insurance by the said policy made, and the said note or obligation should be considered the premium for the risk thus terminated. And that the failure to pay the note given for the premium on the risk, occurred long before the time the "Steamboat Potomac" was consumed by fire, as alleged in the declaration, and that by such failure the insurance made by the policy terminated long before the loss happened &c.

The fifth plea is substantially and in effect the same as the fourth, though more general in the language employed.

At the Circuit Court, held on the 29th day of ...