Quarrier v. Peabody.

• Decision Date: 01 May 1877
• Parties: Quarrier, Trustee v. Peabody Insurance Company and Quarrier, Trustee v. AEtna Fire and Marine Insurance Company. (Absent, Haymond, Judge).
• Court: West Virginia Supreme Court

10 W.Va. 507

Quarrier, Trustee v.Peabody Insurance Company and Quarrier, Trustee

v. AEtna Fire and Marine Insurance Company.(Absent, Haymond, Judge).

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

1. The appearance by a corporation in a plea to the jurisdiction of

the court, should not be in person or by attorney, but may be by its president.

2. The averments in such a plea, as in all other pleas, of all the

material facts, should be direct and positive, and not by way of recital.

3. The averments in such a plea of the location of the principal

office of the corporation and of its president's residence, should be as of the time the action was brought.

4. The proper conclusion of such a plea is whether the court can

or will take further cognizance of the action, and not the action abate and be dismissed.

5. Such a plea must be certain to every intent, and all the old

strictness of the common law, both as to the form and substance, is still required, and a failure of such a plea in any of 'the particulars above indicated would be fatal, and such defective plea should, on motion of the plaintiff, be stricken from the record.

6. The affidavit to the facts stated in such a plea should be posi-

tive, and not as the plaintiff believes.

7. In an action of assumpsit on a policy of insurance, it is neces

sary for the plaintiff to allege an interest in the property insured, which is insufficiently done by the allegation that the defendant insured the plaintiff's property.

8. Such a declaration having alleged that the loss was to he paid

in sixty days after proof and notice given the defendant, in the manner required by the policy, it is necessary for the declaration to allege this manner, and that such proof and notice were accordingly given. And a failure to make these allegations, or the allegation of interest, is fatal to the declaration on general demurrer.

9. In an action of assumpsit based on the adjustment of the loss

caused by the lire, it is necessary to allege that the adjustment was made with the defendant, and this is insufficiently done by an allegation that it (the adjustment) was made with an agent of the defendant; and it is also necessary to allege that the defendant promised to pay the amount of such adjustment, And a failure to make such allegations is fatal to the declaration on general demurrer.

10. A provision in a policy that the assured shall recover such a portion of the loss only as the sum assured bears to the whole amount of insurance, refers to the whole amount of insurance at the time of the loss, and does not impliedly require the assured to keep up other insurances on the property which were in existence when the policy issued.

11. A policy contained a provision that if the'assured should make any other insurance on the property, or.any part thereof, or if the property should be sold or transferred, or any change should take place in the title or possession thereof, without the company's consent, the policy should be void; and also a provision that when the property has been sold or otherwise disposed of, so that all the interest on the part of the assured has ceased, the insurance on such property should terminate. Held:

That the insurance on the entire property is not by these provisions forfeited by a sale of a portion of the property without the consent of the company.

12. A policy contained a provision that if the interest of the assured is not truly stated, or be other than the entire unconditional and sole ownership, and must be so expressed in the policy, under penalty of its forfeiture. Held:

The policy is not rendered void by the fact that it simply describes the property as the property of the assured, and fails to mention that there was at the time the policy issued a deed of trust on the property insured, no inquiry having been made about the state of the title.

13. What does not amount to an adjustment.

14. On a demurrer to the evidence by the defendant, the facts proven sustain the case of the plaintiff, hut i t is so defectively. stated in the declaration that the court or. the demurrer to the declaration ought to have sustained the demurrer. This Court should set aside the judgment for the plaintiff, and re mand the. cause, with directions that the plaintiff have leave to amend his declaration, if advised so to do.

These eases were brought to this Court, by'writs of error and supersedeas, allowed upon petitions of the defendants below, respectively, to judgments rendered by the circuit court of Kanawha county, on the 11th day of December, 1874.

In one of the said suits, William A. Quarrier, trustee for Mrs. D. R. Laidley, was plaintiff below, and The Pea body Insurance Company was defendant below; in the other, William A. Quarrier, trustee for Mrs. D. R. Laidley, was plaintiff below, and The AEtna Fire and Marine Insurance Company was defendant below.

Green, President, who delivered the opinion of the Court sufficiently states the cases..

The Hon. Joseph Smith, Judge of the seventh judicial circuit rendered the judgments in these cases below.

William H. Hogeman, for the plaintiffs in error, referred to the following authorities:

1 Phil Ev. 478; 1 Green. Ev. §212; May on Ins. §273, 277; 10 Wall., 35; 6 Rob, Pr., 68;. 3 Gray 593; 2 (5, 10, N. Y.) 53; 2 Green. Ev. §401-5; 3 Phil Ev., 235; State Bank v. Bell, 5 Blackf., 127; Code W. Va., ch. 125, §39; 1 R, C, 496; Jackson v. Webster, 6 Munf, 462; B. & 0. R. R. Co. v. Gallahue's adm'r, 12 Gratt, 664; Winston's ex'or v. Francisco, 2 Wash., 187; Sexton v. Holmes, 3Munf., 566; Cooker. Simms, 2 Call., 39; Wooddy v. Flournoy, 6 Munf., 506; Wingo v. Brown, 12 Rich. (S. C), 279; Muldrows v. Tappan, 6 Mo., 276; McNulty v. Collins, 7 Mo., 69; Bruner v. Stout, Hard. (Ky.), 225; Benden v. Manning, 2 N. H., 289; 4 Rob. Pr., 230; Hartford Bank v. Hart, 3 Day (Conn.), 493: Mt. Sterling Co. v. Looney, 1 Mete. (Ky.), 530; MaCullough v. Moss, 5 Ben. (N. Y.), 567; Wells v. Pacific R. R. Co., 35 Mo., 164; St. Andrew's Bay Land Co. v. Mitchell, 4 Fla., 192; 2 Rob. Pr., 302; May on Ins., §2, 7, 8, 116, 117; 3 Kent's Com., 371; 3 Rob. Pr., 552; May on Ins., §587;

Muhleman v. Ncdional Insurance Company, 6 W. Va. 518; McFarland & Steele v. Peabody Insurance Company, 6 W. Va. 432; Jewett v. Home Insurance Company, 29 Iowa, 562; Columbian Insurance Company v. Lawrence, 2 Pet., 53; Hoxie v. Home Insurance Company, 32 Conn., 40; 58 Pa., 444, 452; Security Insurance Company v. Fay, 22 Mich., 467; Gould v. York County Mutual Fire Insurance Company, 47 Me., 403; Lovejoy v. Augusta Mutual Fire Insurance Company, 45 Me., 472; Barnes v. Union Mutual Fire Insurance Company, 51 Me., 110; Trustees Fire Association v. Williamson, 26 Pa. St., 196; Friesmouth v. Agawam Insurance Company, 10 Cush., 587; Brown v. People's Insurance Company, 10 Cush., 280; Kimball v. Howard Insurance Company, 8 Gray, 33; Associcded Fireman's Insurance Company v. Assum, 5 Md., 165; Dibol v. Minot, 9 Iowa, 403; Boynton v. Clinton and, Essex Insurance Company, 16 Barb., 24; 17 Ohio St., 432; 2 Parsons on Con., 32; 1 Chitty PL (16 Am. Ed.), 577.

C. E. Doddridge, for defendants in error, cited the following authorities:

Code W. Va., ch. 124, p. 594-5; Acts 1871, ch. 43, p. 63; Code W. Va., ch. 125, §29; 2 Phillips on Ins., 480; May on Ins., §272, 278; 4 Rob. Pr., 441, 442; May on Ins., 319, 320; Osborn. Bank of U. S., 9 Wheat, 738; 1 Chitty PL, 428, 531; Code W. Va., 605; Matthew's Forms, 113, 114, 115; 3 Mass., 160; 6 Leigh, 95-6; 4 Rob. Pr., 230; 4 Hump., (Tenn.) 303; Bell v. Hobbs, Ga., Dec, Part, 2, 144; 2 Abbott, U. S. Dig., 96-97; Enfer v. Shaw; 2 Wend., 567; Bank of Columbia v. Paterson, 7; Cranch, 306, 307; Cooke v.Simms, 2 Call, 36; Code W. Va., 603, §29; 2 Phillips on Ins., 480, 482; 4 Rob. Pr., 441, 442; May on Ins., §272, 319, 320, 278.

Smith and Knight, for defendants in error, cited the following authorities:

Code W. Va., 605, §39; Stevens' PL, 394, 405; 1 Chitty PL, 445, 462, 551; Commonwealth use of Brown v. Fry, et al, 4 W. Va. 721; Code W. Va., 603, §28, 29; Code W.Va., 637, §3; 1 Rob. Pr., 404, 405; 2 Phillips on Ins., §2151; 1 (old) Rob. Pr., 351, 352; 5 Gratt., 364."

Green, President, delivered the opinion of the Court.

In the first of these causes, the plaintiff, on July 1, 1870, brought an action of assumpsit in the circuit court of Kanawha county, against the defendant. The basis of the action was a policy of insurance against fire, issued by the defendant to the plaintiff, of which the following are the contents, so far as they have any bearing on this case:

"By this policy of insurance the Peabody Insurance Company, in consideration of thirty dollars, to them paid by the assured hereinafter named, the receipt whereof is hereby acknowledged, do insure William A. Quarrier, esq., trustee for Mrs. D. P. Laidley, against loss or damage by fire, to the amount of $2,000, as follows, viz: $640.00 on her two story brick metal roof building, with one story brick metal roof addition attached in rear, occupied by E. S. Arnold & Co., as a dry goods store; $140.00 on shelving, counters, furniture, fixtures, drawers, cornice, gas pipe and fixtures contained therein; $547.00 on her two-story brick metal roof building, with one-story brick metal roof addition attached in rear, occupied by Laidley & Miller, as a retail drug store; $113.00 on shelving, counters, furniture, fixtures, drawers, counters, gas pipes and fixtures contained therein; $480.00 on her two-story brick metal roof building, with one-story brick metal roof addition attached in rear, occupied by A. H. Wilson, as a retail hardware store; $80.00 on shelving, counters, furniture, fixtures, drawers, counters, gas pipes and fixtures contained therein, all situate no the notheast side of Kanawha street between Capitol and Summers streets, in Charleston, W. Va.

"$7,000 additional insurance on buildings and fixtures elsewhere.

$2000.00. One year. Premium $30.00.

"And the said company hereby agree to...