Murdock v. Franklin Ins. Co.
| Decision Date | 21 November 1889 |
| Citation | 10 S.E. 777,33 W.Va. 407 |
| Parties | MURDOCK v. FRANKLIN INS. CO. |
| Court | West Virginia Supreme Court |
Submitted June 25, 1889.
Syllabus by the Court.
1. A policy of insurance provides that proof of loss shall be furnished to the insurance company within 30 days from the date of the loss, and that all claims under it shall be barred, unless prosecuted within 6 months from the same date, and also provides that the loss shall be paid in 60 days after proof of loss. The 6 months limitation begins to run at the close of the 60 days allowed the company for payment, not from the actual loss.
2. One person charters of another a barge to be employed by him in the conveyance of freight in a business trip for profit, and has the barge in his custody and possession. He has an insurable interest in the barge, and may insure it in his own name, not only for his own protection, but also for the protection of the owner of the barge; and if his act of so insuring it was authorized by the owner, or is ratified by him, suit may be maintained upon the policy, in case of loss and damages recovered to indemnify the loss of the owner of the barge, not merely the loss of the charterer.
3. Statutes are to be construed to have a prospective operation unless a contrary intention in the legislature is manifest and plain.
4. In an action on a contract, a verdict is rendered for the plaintiff for a sum of money while section 14, c. 131, Code 1868, as originally enacted, was in force, providing that judgment should be entered for the amount found with interest from the date of the judgment; and judgment is not entered on such verdict until 1887, when said section 14, chapter 120, Acts 1882, is in force, providing that on verdicts judgments shall be rendered, with interest from date of verdict. Such judgment should have called for interest from its date, according to the law in force when the verdict was rendered, and not from the date of the verdict.
Error to circuit court, Ohio county.
Caldwell & Caldwell, for plaintiff in error.
W. P Hubbard, for defendant in error.
Thomas Murdock instituted an action of covenant for use of John M Hare, in the circuit court of Ohio county, upon a policy of marine insurance, against the Franklin Insurance Company, for loss of a barge, and there was a demurrer to the plaintiff's evidence by the defendant, and a verdict assessing the plaintiff's damages subject to it, and a judgment for the plaintiff for such damages. The said company has sued out this writ of error. The brief of appellant's counsel contends that the action is barred by the limitation provided in the policy, "that, in all cases of loss or damage, the assured shall furnish to the said company the proofs of the same within thirty days from the date thereof, and all claims under this policy shall be barred, unless prosecuted within six months from the same date." There is a provision, also, in this policy, that, "in case of loss, such loss to be paid in 60 days after proof of loss, proof of interest, and adjustment exhibited to the assurers." The loss occurred from the sinking of the barge Joseph McDonald in the Cumberland river, April 8, 1868. Proof of loss was furnished May 23, 1868, and action was commenced November 2, 1868. Much discussion has occurred in courts of other states upon clauses in insurance policies limiting the period for bringing suits upon them for losses. The company contends that the six months commenced to run from date of loss; the plaintiff contends that it began at the close of the sixty days given the company for payment, which was sixty days after proof of loss. "Where the policy provides that the loss shall be payable within sixty days, ninety days, or any other period after proof of loss is made, an action brought inside of the period limited is premature." Wood, Ins.§ 436; May, Ins. § 476. Some courts have held that the letter of the limitation must govern, and that the period begins from the loss. Johnson v. Insurance Co., 91 Ill. 92; Moore v. Insurance Co., 72 Iowa 414, 34 N.W. 183, if the latter case can at all be said to hold this. But the great weight of authority is in support of the text of Wood, Ins. § 443: Mayor v. Insurance Co., 39 N.Y. 45; Chandler v. Insurance Co., 21 Minn. 85; Ellis v. Insurance Co., 64 Iowa 507, 20 N.W. 782; Hay v. Insurance Co., 77 N.Y. 235; May, Ins. § 479. The case in this Court of Barber v. Insurance Co., 16 W.Va. 658, strongly leans to, in effect sustains, this position. The policy involved in that decision contained a provision that the loss should be paid 60 days after proof, and, further, that either party might ask an arbitration, and that no suit should be brought until afterwards, and a provision that no suit should be maintained unless within 6 months after the loss should occur. This court held that it provided for an indefinite period before suit, and that the "intent of the parties to the contract was that the six-months limitation should commence to run when the cause of action accrued, and not before." There that was upon the award. Here no arbitration is provided, nor can we say an indefinite period is to elapse before suit; but it is provided that the company has 60 days in which to pay after proof of loss. So, that case is authority for the position (1) that the limitation does not begin until cause of action accrues; and (2) that it does not begin from the actual loss,--thus departing from the letter of the policy. The company insists that it denied its liability by letter from its secretary on April 25, 1868, saying: This is not an absolute, unqualified denial of liability, but contemplated further interview; and were it such, according to the opinion in 2 Pars. Mar. Ins. 480, the insured must wait until the time for payment has gone.
It is next contended by counsel of appellant that Murdock had no insurable interest in the barge Joseph McDonald, and that at any rate, under this policy, Hare, the owner of it, could not take its benefit, because of its being expressly, "on account of steam-boat Charleston and owners." The policy reads. etc. It is plain that it was the intention of the parties to insure against loss to the barge. Murdock's relation to it, having chartered it of its owner, Hare, and being in possession and custody of it for the trip for business for profit, gave him an insurable interest in it. Parsons, in his work on Marine Insurance, (volume 1, p. 161,) asks and answers the question: This doctrine is supported by high authority. Lucena v. Craufurd, 2 Bos. & P. (N. R.) 269; Buck v. Insurance Co., 1 Pet. 151; opinion in Hooper v. Robinson, 98 U.S. 538. A charterer may insure. Bartlet v. Walter, 13 Mass. 267; Robbins v. Insurance Co., 1 Hall, 325. The very fact that the company, having opportunity to inquire, if it wished, as to the interest of the assured, and that it did issue to him a policy, is prima facie evidence of his insurable interest, placing the burden on it to disapprove it. Sheppard v. Insurance Co., 21 W.Va. 368. Thus, Murdock has relations recognized by the law of insurance to this barge, and was not a mere stranger to it. Then the further question arises, did this policy cover only Murdock's interest, or also that of Hare? We think it covered the interest of Hare as owner of the barge. The fact that the policy is "on account of steam-boat Charleston and owners," and that this barge is the thing insured, and that it was to be towed by the steam-boat, leads us to the conclusion that this word "owners" was intended to cover the ownership of the barge, and, at any rate, that oral evidence may be heard to establish that fact. Murdock's evidence is that he stated, when the policy was negotiated, to the company that the policy was to protect himself and Hare, the owner of the barge. He was the charterer or bailee of the barge, and acted herein as agent of Hare. The opinion in Hooper v. Robinson, 98 U.S. 538, lays down the proposition that "the agent, factor, bailee, carrier, trustee, consignee, mortgagee, and every other lien...
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