Ritchie County Bank v. Firemen's Ins. Co

• Decision Date: 15 March 1904
• Citation: 47 S.E. 94,55 W.Va. 261
• Court: West Virginia Supreme Court
• Parties: RITCHIE COUNTY BANK . v. FIREMEN'S INS. CO.

47 S.E. 94

55 W.Va. 261

RITCHIE COUNTY BANK .

v.FIREMEN'S INS. CO.

Supreme Court of Appeals of West Virginia.

March 15, 1904.

INSURANCE—ACTION ON POLICY—CHANGE OF TITLE—BREACH OF CONDITIONS—WAIVER.

1. The defendant insurance company, in consideration of $75 premium, by its agent, C, issued and delivered its policy to S. D. W. for $2,500, as follows: $1,500 thereof on a building used for a hotel, office, and other purposes, then owned by S. D. W., and $1,000, the residue, on hotel, office, and kitchen furniture; loss, if any, under the first item of the policy, payable to B., as its interest might appear at the time of fire. The property was totally destroyed by fire. Held, that B. can maintain its action in its own name upon said policy against the company for said $1,500.

2. Where an insurance policy stipulates that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void, _ if any change, other than by the death of the insured, shall take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process, judgment, or voluntary act of the insured, or otherwise, and the insured, after the policy is issued and delivered to him by the company, without any agreement or consent of the company indorsed on said policy or added thereto, and without the consent of the company in any other way obtained by him, voluntarily conveys by deed the insured property to another, such conveyance and change of title of the insured property forfeits the policy, with the right to recover thereon for loss or damage to the property.

¶ 2. See Insurance, vol. 28, Cent Dig. § 791.

3. S. D. W., after he had received the policy sued on, conveyed the insured property by deed to E. D. W., and E. D. W., after such conveyance to him, made and delivered his notes, payable to C. (who, as the agent of the company, issued the policy to S. D. W.), in payment of the premium expressed in the policy, and afterwards E. D. W. paid the said notes to C, but without the knowledge, consent, or ratification of the company. Held, that the acts of O, in receiving said notes and collecting the same in payment of the said premium, did not constitute a waiver by the company of the forfeiture of said policy as aforesaid.

4. Chapter 33, p. 120, of the Acts of the Legislature of 1899, renders fire insurance companies doing business in this state liable, in case of total loss, by fire or otherwise, as stated in the policy, on any real estate insured by them, for the whole amount of insurance stated in the policy of insurance upon said real estate.

(Syllabus by the Court.)

Error to Circuit Court, Ritchie County; M. H. Willis, Judge.

Action by the Ritchie County Bank against the Firemen's Insurance Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Sherman Robinson and J. Newman, for plaintiff in error.

Young & McWhorter, for defendant in error.

MILLER, J. In an action of assumpsit, brought by the Ritchie County Bank against the Firemen's Insurance Company of Baltimore, Md., the circuit court of said county, on the 20th day of February, 1903, rendered a judgment against the plaintiff, dismissing its action and awarding costs to the defendant To this judgment, the plaintiff bank obtained a writ of error and supersedeas. Various rulings of the court, made during the progress of the action, are assigned by petitioner as grounds of error. All of the evidence adduced on the trial is certified in bills of exception. Plaintiff's declaration is in the form proscribed by section 01 of chapter 125 of the Code of 1899. It alleges that the defendant, by virtue of the policy of Insurance thereto attached and therewith filed, owes to the plaintiff the sum of $1,500 for loss in respect to the property insured by said policy, caused by fire on or about the 21st day of December, 1901, at the town of Cairo, in the said county of Ritchie. The policy sued on is in form the "standard fire insurance policy, " bears date on the 8th day of March, 1901, is numbered 709, 500, and, among Its many provisions, contains the following:

"In consideration of the stipulations herein named and seventy-five & no/100 dollars premium, does insure S. D. Williams for the term of one year from the 9th day of March, 1901, at noon, to the 9th day of March, 1902, at noon, against all direct loss or damage by fire, except as hereinafter provided, to an amount not exceeding twenty-five hundred dollars, to the following described property, while located and contained as described herein, and not elsewhere, to-wit: Mr. S. D. Williams, $2,500.00 as follows: $1,500.00 on the three-story frame metal-roofed building, situate on the north side of Railroad street, Cairo, Ritchie county, West Va., and occupied for hotel, office, and mercantile purpose; and $1,000.00 on hotel, office, and kitchen furniture of every description, including billiard tables, pool tables, balls, cues, and all appurtenances thereto, all while contained therein. Loss, if any, under first item of the within policy, payable to the Ritchie County Bank as its interest may appear at the time of the fire. Other insurance permitted. * * * This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * * if the hazard be increased by any means within the control or knowledge of the insured, * * * or if any change, other than by the death of the insured, take place in the interest, title, or possession of the subject of insurance (except change of occupants without increase of hazard), whether by legal process or judgment, or voluntary act of the insured, or otherwise. * * * In any matter relating to this policy, no person, unless duly authorized in writing, shall be deemed the agent of this company. * * * If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, or of any person or corporation having an interest in the subject of the insurance other than the interest of the insured as described herein, the condition hereinbefore contained shall apply in the manner-expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended thereto. * * * If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and amount claimed thereon, and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the time and origin of the fire, the interest of the insured and all others in the property, the cash value of each item thereof and the amount of loss thereon, all incumbrances thereon, all other insurance, whether valid or not, covering any of the said property, and a copy of all the descriptions and schedules in all policies, any change in the title, use, occupation, location, possession, or exposure of said property since the issuing of this policy, by whom and for what purpose any building herein described and the several parts thereof were occupied at time of fire, and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged, and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, not related to the insured) living nearest to the place of fire, stating that he has examined the circumstances and believes the insured has honestly estimated the loss to the amount that such magistrate or notary public shall certify. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provisions or conditions of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power, or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured, unless so written or attached."

Attached to the printed form of the policy is the following: "Note. To secure mortgagee, if desired, the policy should be madepayable on its face to such mortgagee, as follows: Loss, if any, payable to — as his interest may appear." And the "consent by company to assignment of interest": "The Firemen's Insurance Company of Baltimore, hereby consents that the interest of — as owner of the property covered by this policy be assigned to—. —, Agent."

The defendant interposed a demurrer to the declaration, which was overruled by the court Defendant contends that the policy sued on is indivisible, and, being so, its said demurrer should have been sustained. The policy expressly provides that loss, if any, under the first item (the $1,500 item) of the policy shall be payable to the Ritchie County Bank as its Interest may appear at the time of fire. The declaration avers that the defendant owes to the plaintiff the sum of $1,500 for loss in respect to the property insured by said policy. Under section 62 of said chapter, if good cause therefor be shown or appear, the court or judge in vacation may order the plaintiff to file a more particular statement in any...