Riley v. Aetna Ins. Co.
| Decision Date | 17 April 1917 |
| Docket Number | 3243. |
| Citation | 92 S.E. 417,80 W.Va. 236 |
| Parties | RILEY v. ÆTNA INS. CO. |
| Court | West Virginia Supreme Court |
Submitted April 10, 1917.
Syllabus by the Court.
A declaration upon a policy of fire insurance, though not in the form prescribed by section 61, c. 125, of the Code of 1913 (sec. 4815), but setting out in full the provisions of the policy and containing substantially all the averments of the declaration prescribed by said statute, is good on demurrer.
In an action upon a policy of fire insurance for loss by fire of personal property it is a condition precedent to plaintiff's right of recovery, when demanded by the insurer by timely notice, that he should produce for examination on the trial, his books of account, bills invoices, and other vouchers, as required by the policy, unless it is impossible or good cause be shown for his failure to do so, and defendant may stand upon his demand therefor; but if it appears on the trial that the insurer has himself procured such documentary evidence and produces it before the court and jury, he will not be heard on writ of error to this court to complain of the error in the trial court ruling him to trial without the production of such documents by the plaintiff.
The existence of an encumbrance upon personal property insured by a policy of fire insurance at the time the policy is issued or the placing of such encumbrance thereon afterwards and during the life of the policy, without the consent of the insurer endorsed thereon or attached thereto as proved by the policy, constitutes a breach of the warranty therein against such encumbrances, and, unless waived by the insurer, or he be estopped by some act or conduct on his part, amounting to waiver, and such breach of the warranty is relied on to defeat action on such policy, and specification thereof has been given as prescribed by the statute, no evidence of waiver or estoppel should be received unless specification thereof in writing has been given by the insured as required by the statute.
When a policy of fire insurance is regularly issued and left with the agent issuing it, a banker, for safe keeping, this constitutes delivery of the policy, and the agent of the insurer thereby becomes the agent for the insured for the custody of the policy, and the insured is bound to know the terms and conditions thereof, and cannot excuse his breach of any of the warranties therein on the ground of ignorance thereof.
The fact that prior policies on the same property issued by the same agent for the same insurer had attached thereto the agreement of the insurer to an incumbrance then existing thereon, but which the agent knew at the time of issuing the policy sued on had been paid off, did not constitute notice to the insurer of the existence of a subsequent encumbrance upon the property, or put the insurer or his agent upon inquiry to ascertain the existence thereof, or estop him from relying on the breach of warranty in the policy against such encumbrance.
The provision in a policy of fire insurance against false swearing is not violated by the insured by slight overestimates in his proofs of loss of the value of the property destroyed, but when the disparity between the value so placed upon the property by him is so great, and so out of proportion to the actual value thereof as shown upon the trial as to plainly evince intent on his part to defraud the insurer, the question becomes one of law for the court and not of fact for the jury, and defendant is entitled to an instructed verdict in his favor.
Error to Circuit Court, Roane County.
Action by P. W. Riley against the Ætna Insurance Company. Judgment for plaintiff, and defendant brings error. Reversed, and verdict set aside.
Pendleton Mathews & Bell, of Grantsville, for plaintiff in error.
Ryan & Boggess, of Spencer, for defendant in error.
To obtain a review of the judgment for plaintiff for six hundred dollars, upon one of its policies of fire insurance, defendant obtained this writ of error.
First, it is pointed out that the demurrer to the declaration should have been sustained. While the record shows such demurrer, the case was tried without reference thereto on the other pleadings, but the effect of the judgment was to overrule the demurrer.
The declaration is neither the short form prescribed by section 61, of chapter 125, of the Code (sec. 4815), nor a common law declaration upon a policy of insurance. It seems to be an invention of the pleader, and probably not good as a common law pleading. Why the pleader should have chosen this particular form of declaration instead of the simple form prescribed by statute, is difficult to comprehend. However, we conclude that as the declaration sets out in full the policy sued upon, and alleges substantially that by virtue of the policy, defendant owes plaintiff for loss in respect to the property insured thereby, etc., it should be construed as one under the statute, and not as a common law declaration, and good upon demurrer. It becomes unnecessary, therefore, to consider the several points of objection to the declaration, based upon the theory of a common law pleading.
The next point is that the court erred in allowing the trial to proceed without requiring plaintiff, upon its demand, to furnish for examination, his books of account, bills, invoices, and other vouchers, as required by the terms of the policy, and as required in one of its specifications of defenses. At the opening of the trial defendant renewed the demand for the papers and documents specified to be used as proof. Plaintiff, through his counsel, answered that he did not have the papers demanded or any of them, never did have them, and could not produce them, except the statement or account of H. D. Wells, for thirty nine and one half yards of linoleum, which was produced and offered the defendant. The ruling of the court was that the plaintiff should furnish these papers, if they were in existence, and upon the further demand of counsel, the court ruled that it seemed to be impossible for the plaintiff to produce the papers, and ruled defendant to trial without their production for the reason given.
The provisions of the policy require that if the originals be lost, certified copies thereof shall be produced by the insured, and the only excuse offered on behalf of plaintiff, by his counsel, was that he did not have the papers called for, nor any of them, and never had had them. We do not think this excuse was sufficient. He did not answer that he could not produce certified copies thereof, or explain why he could not. Moreover, on cross-examination, plaintiff showed that he had made some effort to obtain duplicate bills of invoice from L. M. Taylor Barber Supply Company, of Cincinnati. He does not say that this company refused to furnish him these duplicates, but they told him they would have to go down in the basement and dig them out, and didn't want to do it, it wasn't necessary. He does not pretend to have tried to obtain duplicates from other concerns from whom the property destroyed was purchased, and on further cross-examination the defendant itself produced a number of invoices of the L. M. Taylor Barber Supply Company, for supplies sold Riley, and the defendant also put upon the stand several witnesses from supply houses, who testified to having sold most of the articles destroyed, either to the plaintiff himself, or to his predecessors in title, who had purchased the property from these houses, so that we do not think plaintiff showed a good excuse for not complying with the demand, and defendant might have rested upon its demand to defeat recovery. Our decisions so hold. Rosenthall Co. v. Scottish Insurance Co., 55 W.Va. 238, 46 S.E. 1021; Tucker v. Colonial Fire Insurance Co., 58 W.Va. 30, 51 S.E. 86; Teter v. Franklin Fire Ins. Co., 74 W.Va. 344, 82 S.E. 40. But inasmuch as the defendant appears to have had on hand most, if not all, of these bills, or had actual information in regard to them, and proved the prices at which the property had been purchased, it could not have been prejudiced on the trial by the failure of the plaintiff to produce them upon its demand; and if this was the only error relied upon as ground for reversal we would not be disposed to reverse the judgment on this account alone. The provision in the policy requiring production of such papers is to prevent fraud and imposition upon insurance companies, and if it appears, as in this case, that an insurance company has not been prejudiced, but has itself obtained full information respecting the subjects of its demand, it ought not to be heard to complain in an appellate court.
Another proposition contended for is that the court should have directed the jury to return a verdict for defendant, as required by its instructions numbered one and six, because of the existence of a deed of trust or chattel mortgage upon the property at the time of the issuance of the policy and at the time of the fire, without the agreement of the company endorsed upon or added to the policy, and in violation of one of the express provisions thereof, rendering the policy void.
The fact of the existence of such encumbrance upon the property is not controverted. This is one of the...
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