Rheims v. Standard Fire Ins. Co. of Wheeling

• Decision Date: 15 December 1894
• Citation: 20 S.E. 670,39 W.Va. 672
• Parties: RHEIMS v. STANDARD FIRE INS. CO. OF WHEELING.
• Court: West Virginia Supreme Court

20 S.E. 670

39 W.Va. 672

RHEIMS v. STANDARD FIRE INS. CO. OF WHEELING.

Supreme Court of Appeals of West Virginia.

December 15, 1894

Submitted September 12, 1894.

Syllabus by the Court.

1. In an action of assumpsit against an insurance company to recover the amount of a policy, where the declaration is drawn in accordance with the form prescribed in section 61 c. 125, Code, and additional statements are filed, as required by sections 62, 63, and 65 of said chapter, such statements so filed must be regarded as informal pleadings.

2. Provisions in a policy of insurance, prescribing a limit of time within which notice of loss is to be given, will not be construed as causes of forfeiture, where not so expressly stipulated in the policy; and where it is provided that no suit or action against the company for the recovery of any claim by virtue of the policy shall be sustainable until after full compliance by the assured with all the foregoing requirements, not unless suit or action be commenced within six months after the date of the fire, proofs of loss, may be furnished in a reasonable time after the fire, and, if accepted and retained by the insurer without objection, all objection to the form of the proofs and the time in which they are presented will be considered as waived.

3. Proofs of loss are no part of a contract of fire insurance nor do they create the liability to pay a loss; they serve to fix the time when it becomes payable, and when an action may be commenced to enforce a liability.

4. If the evidence shows that the preliminary proofs required by a policy of insurance have been waived by the company, the insured is entitled to recover, though no such proofs were in fact furnished.

5. Where additional statements are filed by the plaintiff in an action upon an insurance policy, which are necessary in order to allow the plaintiff to show material facts therein stated bearing upon the waiver by the defendant of conditions contained in the policy, and the court erroneously sustains a demurrer to such statements, and thereby precludes the plaintiff from producing testimony upon said points, the court may at a subsequent term set aside the order sustaining said demurrer.

6. Where a demurrer thus sustained has precluded the plaintiff from introducing material testimony upon the trial, and the court, having discovered the error, sets aside the verdict of the jury, and awards a new trial upon that grounds, this is not error.

Error to circuit court Ohio county.

Action by Leon Rheims against the Standard Fire Insurance Company of Wheeling, W. Va., on a fire insurance policy, in which there was a verdict for defendant. There was a judgment sustaining plaintiff's motion for a new trial, and defendant brings error. Affirmed.

W. P Hubbard, for plaintiff in error.

Caldwell & Caldwell, for defendant in error.

ENGLISH, J.

Leon Rheims obtained a policy of insurance from the Standard Fire Insurance Company of Wheeling for $1,000 on certain merchandise contained in brick building and on sidewalks adjoining, situate Nos. 5, 7, and 9 Union Square, New York through, to, and fronting on Fifteenth street, from the 11th day of January, 1892, at 12 o'clock noon, to the 11th day of January, 1893, at 12 o'clock noon, subject to the conditions and stipulations of said policy. On or about the 21st day of January, 1892, said merchandise was lost by fire in the city of New York, and on the 10th day of June, 1892, the said Leon Rheims brought an action of trespass on the case in assumpsit against said insurance company to recover the amount of said policy. The declaration is in the short form prescribed by section 61, c. 125, Code, and a copy of the policy was filed with the declaration. One of the conditions of the policy was that proof of loss should be furnished within 30 days after the fire occurred, and that payment of the policy should be made 60 days after compliance by the assured with the conditions of the policy, and that no suit should be brought for the same until the assured had complied with the requirements of the policy. In addition to the statutory plea, said insurance company stated, by way of defense, the failure on the part of the plaintiff to comply with certain requirements of said insurance policy, as follows:

"In the Circuit Court of Ohio County, W.Va. Leon Rheims vs. Standard Ins. Co. of Wheeling, West Va. The defense in the above case, being, with other things, that the action cannot be maintained because of the failure to perform, and comply with and the violation of certain clauses, conditions, and warranties in the policy sued on, the defendant here specifies, as the particular clauses, conditions, and warranties in respect to which such failure or violation is claimed to have occurred, the following: 'Third. This entire policy shall become void in each of the following instances, viz.: *** If, any usage of trade or manufacturer to the contrary notwithstanding, there be kept, used, or allowed on the above-described premises *** rubber cement.' Defendant states that rubber cement was kept, used, and allowed on the premises in the policy described. 'Eighth. Proceedings in the case of loss: *** And within thirty days after the fire the assured shall render a particular and detailed statement of the loss and claim in writing, signed and sworn to by the assured, setting forth: (1) A copy of the written portions of this policy, with the indorsements thereon; (2) copies of the written portions of all other policies, whether valid or not, attaching in whole or in part to the property insured hereunder, and of all indorsements thereon; (3) the cash value at the time of the fire of each item of the property, and the amount of loss claimed thereon; (4) a full and specific account of the nature of assured's interest in and title to the property, and that of all others interested therein; (5) all incumbrances or liens upon the property, or any part thereof; (6) the time, origin, and circumstances of the fire; (7) any change in the title, use, occupancy, location, possession, or exposure of said property since the policy was issued; (8) by whom and for what purpose any parts thereof were occupied at the time of the fire; (9) the amount claimed of this company. And shall also furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the assured, nor a sufferer by the fire) living nearest the place of the fire, stating that he has examined the circumstances, and believes the assured has honestly sustained loss to amount claimed. *** Ninth. No suit or action against the company for the recovery of any claim, by virtue of this policy, shall be sustainable in any court of law or equity until after full compliance by the assured with all the foregoing requirements.' W. P. Hubbard, Attorney for Defendants.

"State of West Virginia, Ohio Co., to wit: Personally appeared before me John W. Mitchell, clerk of the circuit court of said county, in my office, E. B. Bowie, who, being duly sworn, says on his oath that he is secretary of the defendant, the Standard Fire Ins. Co. of Wheeling, and that he believes that the matter of defense above stated by the said company will be supported by evidence at the trial of the above-entitled action. E. B. Bowie.

"Taken, sworn to, and subscribed by the said E. B. Bowie before me in my said office this 13th day of Sept., 1892. John. W. Mitchell, Clerk of the Circuit Court."

On the 8th day of October, 1892, on motion of the plaintiff, the defendant was required to file an additional statement, which was done, and which additional; statement reads as follows: "Leon Rheims vs. Standard Fire Insurance Company. In Assumpsit. The defendant, to comply with the order of the court made herein on the 8th day of October, 1892, says that it expects to prove at the trial of this action that the assured did not within thirty days after the fire render any statement in writing of its loss and claim, signed and sworn to by the assured. The assured never furnished a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, not related to the assured, not a sufferer by the fire) living nearest the place of the fire, stating that he had been examined the circumstances, and believed that the assured had honestly sustained loss to the amount claimed,"--which additional statement was sworn to by E. B. Bowie, secretary of said company; and on the 21st day of November, 1892, the plaintiff tendered a demurrer to the plea of defendant with the original statement of defense, and said additional statement, filed in aid of said plea, and also a demurrer to said a statements, and each of them, on the ground that they did not did either of them set forth any defense sufficient in law to said action; and on the 28th day of January, 1893, the defendant having joined in said demurrer, the same were overruled as to the defendant's plea, with so much of the statement filed by defendant in aid of it as relates to the proof of loss not being furnished within 30 days after the fire; and also overruled the demurrer of the plaintiff to the defendant's plea, with so much of the statements filed by the defendant in aid of it as relates to a certificate of a magistrate or notary public not being filed; and also overruled the demurrer of the plaintiff to the defendant's plea, with so much of the statements filed by the defendant in aid of it as relates to the rubber cement being kept, used, and allowed.

The plaintiff thereupon filed the following statement: "Leon Rheims v. Standard Fire Ins. Co. of Wheeling. In Assumpsit. The plaintiff, Leon Rheims, files the following statement in writing of matters upon...