Plaintiff v. Ins. Co.

• Citation: 12 W.Va. 116
• Court: Supreme Court of West Virginia
• Decision Date: 12 December 1877
• Parties: Miller et al. v. Insurance Company.

12 W.Va. 116

Miller et al.

v.Insurance Company.

Supreme Court of Appeals of West Virginia.

Decided December 12, 1877.

1. A new trial, asked on the ground that the verdict is contrary to

the evidence, ought to be granted only in a case of plain deviation from right and justice, not in a doubtful case, merely because the court, if on the jury, would haVe given a different verdict.

2. Where a case has been fairly submitted to a jury, and a verdict

fairly rendered, it ought not to be interfered with by the court, unless manifest wrong and injustice has been done, or unless the verdict is plainly not warranted by the evidence or iacts proved.

3. Where some evidence has been given, which tends to prove the

fact in issue, or the evidence consists of circumstances and presumptions, a new trial will not be granted, merely because if the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases, the evidence should be plainly insufficient to warrant the finding of the jury. And this restriction applies a fortiori to an Appellate Court.

4. The court below may grant a new trial where the evidence is

contradictory, and the verdict is against the weight of evidence; but in such case the power of the court to grant a new trial should be very cautiously exercised. And when in such case the court below grants a new trial, the opinion ot the court below is entitled to peculiar respect; and generally the Appellate Court will not reverse the order of the court in such case granting a new trial.

5.when the court below grants a new trial, where there is apppar ently no conflicting evidence, and the opinion and order of of exceptions does not contain all the facts proved at the trial of the cause, but a part of the facts proved and part of the evidence given, or all the evidence given, then in such case an Appellate Court will not reverse the order of the court granting the new trial, unless it manifestly and clearly appears that the order of court granting the new trial is erroneous.

6. Generally a stronger case should be made to justify an Appel-

late Court in the disturbance of an order granting a new trial, than when one has been refused,

7. Where a policy of insurance is issued by an insurance company

upon a steamboat for a year, with permission to navigate the Mississippi and tributaries, and on the trial of a cause to recover the value of the steamboat, it is proven that the steamboat was lost in Cypress bayou, and that Cypress bayou was navigable by "steamboats, and that said bayou emptied into Red river, and that Red river emptied into the Mississippi. Held:

That said Cypress bayou was a tributary of the Mississippi, within the meaning of said policy.

8. In the interpretation of a policy of insurance in all cases it

must be liberally construed in favor of the insured, so as not to defeat without a necessity his claim to the indemnity, which in making the insurance it was his object to secure. And when the words are, without evidence, susceptible of two interpretations, that, which will sustain his claim and covei the loss, must in preference be adopted.

9. In construing an instrument, prepared by the insurer, it oughl

to be read most strongly against the maker.

Supersedeas granted upon the petition of Isaac Miller, to a judgment and order of the circuit court of Ohic county, made on the 31st day of January 1876, setting aside a verdict rendered, and granting a new trial in a certain action of assumpsit then pending in said court in which the said Isaac Miller, who sued for himself anc for the use of Luther E. Magee, David McConnell anc L. V. Applegate, owners of the steamboat " Wash. Sawtell," was plaintiff, and the Citizens' Fire, Marine anc Life Insurance Company of Wheeling wras defendant

The Hon. Thayer Melvin, judge of the first judicia circuit, presided below.

The case is sufficiently stated in the opinion of the-Court.

Caldwell & Caldwell, for appellants:

The boat was insured by the policy on the Mississippi river and its tributaries. It was sunk on Cypress bayou, a navigable stream flowing into Red river, and Red river into the Mississippi. The court below held that Cypress bayou is not tributary to the Mississippi, and therefore granted the appellee a new trial. A more liberal construction should have been given to the language of the policy. May on Insurance, §§174 and 175; Weston Ins. Co. v. Cropper, 32 Pa. 355; Chandler v. St. Paul Ins. Co., 21 Minn. 85; S. C. 18 Am. R. 385; Kentucky Mutual Ins. Co. v. Jenks, 5 Ind. 103 and 104.

Daniel Lamb and William P. Hubbard, for appellee:

I. The conversation of the defendant's secretary after the expiration of the thirty days, within which the proofs were required to be furnished, cannot constitute a waiver of that requirement. Underwood v. Farmers Ins. Co., 57 N. Y. 500, 505-6; Beaty v. Lycoming Ins. Co. 66 Pa.; 9 S. C. 5 Am. R. 322; Muhleman v. National Ins. Co., 6 W. Va. 518; Leslie v. Knickerbocker Ins. Co. 63 N. Y. 27.

II. The language in question here being not that of a condition, but of the written part of the policy, which was furnished by the insured, ought to be construed not strictly against the insurer, but fairly. Merchants Ins. Co. v. Edmond Davenport & Co., 17 Gratt. 145; Savage v. Howard Ins. Co., 52 N. Y. 504; Ripley v. JEtna Ins. Co., 30 N Y. 158; Carpenter v. Providence Ins. Co., 16 Peters 510, 511; Stokes v. Cox, 1 H. and N. 341, per Pollock, C. B.

III. The court below having granted a new trial, a very clear case of error must be shown by the record to justify an Appellate Court in setting the order aside. Shrewsbury v. Miller, 10 W. Va. 115; Powell v. Grimes, ' 8 Ind. 252; Cronk v. Cole, 10 Ind. 408; Beatty v. Hatcher, 13 Ohio St., 121-2.

VI. A much stronger case is necessary to justify the Appellate Court in reversing an order of the court below grafting, than one refusing a new trial. Field v. Kinnear, 5 Kan. 232; Roberts v. Jones, 30 Iowa 525; Tezeler v. Jones, 33 Iowa 234; N Y. Piano Co. v. Mueller, 38 Iowa 552; Nagle v. Hornberger, 6 Ind. 69; Leppar v. Enderton, 9 Ind. 353; House v. Wright, 22 Ind. 383; Oliver v. Pace, 6 Ga. 185; Spa ford v. Bradley, 20 Ohio 74; Bea% v. Hatcher, 13 Ohio St. 121; Hammond v. Hammond, 21 Ohio St. 620.

Haymond, Judge, delivered the opinion of the Court:

This is an action of trespass on the case in assumpsit brought by Isaac Miller, who sues for himself and for the use of Luther E. Magee, David McConnell and L. V. Applegate, late owners of the steamboat called the "Wash Sawtell," against the defendant, and is founded upon a policy of insurance made by the defendant to the plaintiff, on account of the then owners of the said steamboat, in the sum of $2,000.00 upon said steamboat, from the 24th day of October 1871 at noon, to noon ot the 24th day of October 1872, when the policy should expire," unless sooner terminated or made void by conditions hereinafter expressed, with permission to navigate the Mississippi and tributaries, except the Missouri and Arkansas rivers." The action was commenced on the 28th day of May 1872, in the circuit court of the county of Ohio. At a circuit court of said county, held on the 2d day of November 1872, the parties appeared in court, by their attorneys, and on motion of the defendant the judgment entered against it in the office was set aside; and the defendant pleaded, that it did not assume upon itself in manner and form as the plaintiff in his declaration against it had alleged, and of this it put itself upon the country; and the plaintiff did likewise. The defendant failed to demur to the plaintiff's declaration, or make any objections thereto for insufficiency. No exception or objection is made or taken before this Court to the declaration for any cause. The declaration seems to state and allege a legal cause of action by the plaintiff for himself and for the use of the other owners of the said steamboat against the defendant. On the 2d day of November 1875 a jury was duly elected, tried and sworn, the truth to speak upon the issue joined; and after having heard the evidence, and on the 4th day of November 1875, during the same court rendered the following verdict, viz: "We the jury find for the plaintiff, and assess the damages at $1,392.05." Whereupon the defendant moved the court to set aside said verdict and grant it a new trial. Afterwards, on the 31st day of January 1876, the court granted the defendant's motion, and ordered that the verdict of the jury by set aside, and a new trial be granted to the defendant upon condition of its paying the costs of the former trial. To this order and judgment of the court the plaintiff has obtained a supersedeas from one of the Judges of this Court in vacation; and it is now to be determined by this Court, whether the circuit court has committed such error in setting aside the said verdict and granting a new trial, as authorizes this Court to reverse the said order of the circuit court, and render judgment upon the verdict in favor of the plaintiff.

This case does not come before us as did the case of Miller use &c. v. Insurance Company 8. W. Va. 515. In that case the defendant demurred to the evidence, and the evidence adduced by each party was before the court. In that case the circuit court rendered judgment upon the demurrer to evidence in favor of the demurree (the plaintiff below); and this Court, for reasons in the opinion of the court filed therein, rendered judg- merit affirming the judgment of the circuit court. In the case in judgment a trial by jury was had, a verdict" in favor of the plaintiff rendered, and the circuit court on motion of the defendant set aside the verdict, and granted a new trial upon terms. The plaintiff excepted to the opinion and judgment of the court setting aside the verdict and granting a new trial in the case. The court has certified in the bill of exceptions in part the facts proved, and in part the evidence both verbal and written given in the case,...