Peninsular Land Transp. & Manuf'g Co v. Franklin Ins. Co

• Decision Date: 28 November 1891
• Citation: 35 W.Va. 666,14 S.E. 237
• Court: West Virginia Supreme Court
• Parties: Peninsular Land Transp. & Manuf'g Co. v. Franklin Ins. Co.

14 S.E. 237

35 W.Va. 666

Peninsular Land Transp. & Manuf'g Co.

v.Franklin Ins. Co.

(Supreme Court of Appeals of West Virginia.

Nov. 28, 1891.

Insurance—Action on Poliot — Proofs of Loss — Waiver — Practice — Special Findings bt Jury—Instructions.

1. The purpose of the statute is to ascertain and separate one or more controlling facts, to the end that the existence or non-existence of some fact upon which the issue turns may be deliberately examined, patiently considered, and expressly found, so that a proper judgment may be rendered, according to the truth and the very right of the case.

2. Therefore all that tends to advance this remedy and accomplish the object for which it was designed should be encouraged and promoted.

3. But all methods of procedure that experience has shown have the contrary tendency, — such as immaterial questions which lead to no result, obscure or ambiguous questions which only add another element of doubt, a profusion of questions, which only create distraction, and increase perplexity rather than remove them, — all such should be ruled out with an unsparing hand.

4. Experience shows that the tendeney is towards a multitude of questions, many of them not decisive of the issue, and those which are decisive put in all possible shapes, and repeated with all conceivable variations. Such methods of procedure increase the evil, rather than advance the remedy, and the trial court should exclude them, and prune them, and reduce them in number unsparingly, in which the wide discretion given them by the statute should be steadily upheld. But such discretion is subject to review as in other cases.

5. It is proper not to permit an immaterial question to be propounded, and it is immaterial, unless an answer thereto, if contrary to the gen-eral verdict, would control the same, and be conclusive of the verdict. Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W. Va. 155, 11 8. E. Rep. 1009.

6. The special findings, taken as a whole, must he clearly inconsistent with the general verdict, and, to be inconsistent, they must clearly exclude every conclusion that would authorize a verdict for the plaintiff.

7. At what time or stage of the trial such special questions may be submitted must be loft largely to the discretion of the trial court, but they should not be submitted at such a stage as to work surprise, or be manifestly unfair to the other side.

8. If a party intends to ask the court to instruct the jury that the evidence is wholly insufficient, and to direct them to find a verdict accordingly, such instruction must be drawn with that end directly in view, and such ground must be explicitly stated.

9. The usual stipulations that the insured shall furnish certain preliminary proofs of loss, when loss has been sustained, are conditions precedent to the insurer's right to recover; but such conditions may be waived, or the insurer be estopped from setting them up.

10. And everything said or done by the insurer or by his proper agents upon which the insured may reasonably rely, which might fairly induce him to conclude that such proofs of loss have in his case been dispensed with or excused, and he is thereby influenced to act in good faith In accordance with such conduct, may amount to a waiver of such formal stipulation.

11. A case in which these rules are applied.

(Syllabus by the Court.)

Error to circuit court, Ohio county.

Action by the Peninsular Land Transportation & Manufacturing Company against the Franklin Insurance Company on a fire insurance policy. Judgment for plaintiff, and defendant brings error. Reversed.

W. P. Hubbard and A. J. Clarke, for plaintiff in error.

Henry M. Russell, for defendant in error.

Holt, J. This is a suit brought in the circuit court of Ohio county on the 29th day of December, 1888, by the Peninsular Land Company, plaintiff below and appellee here, against the Franklin Insurance Company, of Wheeling, defendant below and appellant, on a policy of fire insurance for $500 from 3d April, 1888, at 12 o'clock at noon, to 3d April, 1889, at 12 o'clock noon. The declaration is in the short form given in section 61, c. 125, of the Code. The policy is referred to as filed therewith, tinder section 64 of same chapter defendant filed a plea, saying that "said defendant is not liable to the plaintiff as in said declaration alleged, " and filed therewith a specification of grounds of defense. Plaintiff filed a reply, joining issue with a statement of matters relied on in waiver, estoppel, and avoidance of defendant's statement of defenses; a jury was elected and sworn; the evidence heard; various instructions given and refused; a motion by defendant that the jury should be required to answer in writing eight several questions of fact specially; motion overruled; verdict found for plaintiff; motion for new trial made and overruled; exceptions taken; judgment rendered; and the case brought hereon writ of error.

We find it convenient to consider first the eight questions asked by defendant to be submitted to the jury under section 5 c. 131, of the Code. The court refused to submit these questions to the jury: "Questions by defendant for special finding: (1) Was notice of the loss given by assured forthwith? (2) Was due diligence exercised by the assured in giving notice of the loss? (3) Was there any reason for the assured delaying fifteen days in notifying the plaintiff of the loss? (4) If any such reason existed, what was it? (5) Was a particular account of the loss rendered within 30 days thereafter? (6) Was a particular account of the loss rendered within a reasonable time thereafter? (7) Was there any reason for the assured delaying until June 27 to render the particular account required by the policy? (8) If any such reason existed, what was it?" But few cases have reached this court involving this subject. See Kerr v. Luns-ford, 31 W. Va. 659, 684, 8 S. E. Rep. 493, our first case; also. Wheeling Bridge Co. v. Wheeling & B. Bridge Co., 34 W. Va. 155, 11 S. E. Rep. 1009, and opinion of Lucas, J.; also Bess v. Railway Co., 14 S. E. Rep. 234, (at this term,) and opinion of Bkan-non, J., —as to the purpose and reason of thelaw. The statute provides that "where any such separate verdict or special finding shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly." The question is, did the court err in refusing defendant's request to submit these eight questions? This practice has its advantages it doubt, but it is easy to foresee the abuses to which it may gradually lead; hence this warning is given early, not with reference to the questions in this particular case, but to help guard ourselves from gradually gliding into some abuses which are now inducing other courts to limit, rather than improperly extend, the practice of propounding so many Interrogatories to the jury. "It is an abuse fraught with evil, for it tends to bewilder the jury, rather than to aid them." It does not apply to criminal cases. If the question is objectionable In form or substance, objection must be made when It is requested to be given. If the jury agree on a general verdict, they must answer the questions fully, without evasion, so far as the evidence enables them to do so." Inasmuch as they control the general verdict, and, when inconsistent therewith, the judgment of the court must be based upon them, the importance of submitting proper questions becomes apparent; for, If the questions are immaterial, —that is, not decisive of the issue, — the answers will be so also if responsive, so that it will be the duty of the court in that event to render judgment on the general verdict. The special findings, taken as a whole, must be consistent with the general verdict, or the fact found in any one or more of the answers must clearly exclude every reasonable conclusion that will authorize a recovery by the plaintiff. Such antagonism to the general verdict must be such as to exclude every ground of recovery that there is any evidence even tending to prove; for, if there be such evidence, it justifies the general finding, and a demurrer to evidence or exclusion of evidence for insufficiency or direction to findagainst plaintiff for such cause withdraws the interrogatories necessarily. If the special finding can be reconciled with the general verdict, and made consistent therewith by any fact which the evidence fairly tends to prove, the general verdict must prevail¹. Inconsistent findings, such as cannot stand together, destroy each other; and the court must disregard the antagonistic parts. In doubtful cases the court will so interpret the special findings as to support, rather than overturn, the general verdict; for unless, without any Inference or presumption in their favor, the special findings are invincibly antagonistic to tbe general verdict, the latter must prevail. The special findings are considered and construed as a whole. Those not material may generally be disregarded; but one cannot be singled out to overthrow the general verdict, if, when taken with the others, it is consistent therewith. If no motion is made for judgment on tbe special findings, judgment, as of course, is rendered on the general verdict. Upon motion for judgment no question is entertained as to their inconsistency with the evidence, nor is the evidence considered, but only the pleadings, special findings, and general verdict; but there may be motion for a new trial upon the ground, among others, that such special findings are wholly unwarranted by the evidence. If the special findings do not, in effect, cover all the issues expressly or impliedly made, so that the general verdict could not have been rendered without an investigation of the facts embraced by the interrogatories, and such special findings are not inconsistent with those issues or those parts of the issue not covered by them, still the party is not entitled to judgment, though such...