Sheppard v. Peabody Ins. Co.

• Decision Date: 07 April 1883
• Citation: 21 W.Va. 368
• Court: West Virginia Supreme Court
• Parties: John A. Sheppard, Adm'r v. Peabody Ins. Co.

21 W.Va. 368

John A. Sheppard, Adm'r

v.Peabody Ins. Co.

Supreme Court of Appeals of West Virginia.

Submitted August 3, 1882

Decided April 7, 1883.

(^*Woods, Judge, Absent.)

1. A demurrer to a declaration containing several counts should be overruled, if any one count is good. (p. 377.)

2. The common counts in an action of assumpsit are good on demurrer, when they are in the form prescribed by the English judges, set out in Conway Robinson's forms, pages 550, 551 and 554, though both the consideration and promises are stated after a whereas; but this mode of statement is in apparant violation of the general rule of pleading, that whatever facts are necessary to constitute the cause of action, should be stated directly and positively. (p. 378.)

3. The failure to file a bill of particulars in such an action is not ground for a demurrer, (p. 379.)

4. A policy of insurance against tire is a contract of indemnity; and the assured must have an insurable interest in the property, when it is insured, and when the loss by lire occurs, (p, 879.)

5 But if the policy on its face sets out such an insurable interest, as for example ownership of the property insured, this alone establishes, that the assured has prima facie an insurable interest; and if this be disputed, the insurance company must by proper proof show, that he had not an insurable interest, (p. 380.)

6. Ifa party has the care and custody of property, he may insure itin his own name, even though he be not responsible for its safety, if he really insured it for the owner, though this be not expressed on the face of the policy, for in such case, he has an insurable interest; and in general to give a party an insurable interest in property it is not necessary, that he should have any actual right of property either legal or equitable in the subject insured, but it is sufficient, if he or those whom he represents will suffer any sort of loss by its destruction, (p. 380.)

7. If the personal estate of a decedent be insufficient to pay all his debts, the administrator of such decedent has an insurable interest in the buildings, which belonged to his decedent; for our statute in such case authorizes him as administrator to bring a suit in chancery to have such buildings sold to pay the debts of the decedent, (p. 385.)

8. Qucere: Would an administrator have such an insurable interest, if the personal estate was sufficient to pay all the decedent's debts? (p. 88ft.)

9. If the administrator of a decedent has such insurable interest, he has a right to recover on the policy in case of loss by fire, though when the loss occurs there are abundant real assets to pay all the decedent's debts, if they have not been actually paid, (p, 886.)

10. An insurance company, which establishes a local agency, is responsible for all the acts and declarations of its agent within the scope of his apparent authority. The question in such cases is not what authority he in fact has, but what were his apparent powers, that is, what powers had the assured a right to believe were was given to the agent, (p. 381.)

11. A policy of insurance may be continued in force by a subsequent contract made before, at the time of, or after the policy had expired, (p, 387.)

12. 'Such a continuance of a policy differs from a new contract of insurance, as by it the original contract is kept up; and in case of loss the original policy is the basis of action in connection with the contract of renewal or continuance; and if changes are intended to be made, it is properly done by simply expressing the changes in the renewal or continuance-receipt (p. 382.)

13. If such receipt be ambiguous on its face, it may be explained by the situation of the parties or by the surrounding circumstances existing when it was executed, but not by verbal declaration of the parties, (p. 282.)

14. A denial by an insurance company of its liability on other grounds, before any preliminary proofs are made, and before the time within which such proofs are to be made by the terms of the policy, is in law a waiver of the conditions of a policy requiring such proofs. (p. 383.)

15. If an instruction given by a court on an abstract question is erroneous, the Appellate Court will not reverse the judgment of the court below on that account, if it appears that no injury could have resulted to the plaintiff in error from such erroneous instruction; but if such erroneous instruction was calculated to mislead the jury to the injury of the plaintiff in error, the Appellate Court will reverse the judgment, and award a new trial on that account, (p. 394)

Writ of error and supersedeas to a judgment of the circuit court of the county of Jefferson, rendered on the 15th day of November, 1879, in an action at law in said court then pending, wherein John A. Sheppard, administrator of Amos Sheppard deceased, was plaintiff, and The Peabody Insurance Company was defendant, allowed upon the petition of said company.

Hon. John Blair Hoge, judge of the third judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

At the January rules, 1870, John A. Sheppard, administrator of Amos Sheppard, deceased, filed his declaration in assumpsit in the circuit court of Jefferson county, against the Peabody Insurance Company at Wheeling, W. Va. And in his declaration were two counts, one a special count on a policy issued to him, by the said company, whereby it insured John A. Sheppard, administrator of Amos Sheppard, for one year from August 15, 1872, against loss by fire, to the amount of one thousand dollars on his barn in said county. The policy of assurance was set out at length in the declaration, and filed with it as a part thereof. It is unnecessary to state its provisions, but it will suffice to state, that there was in it all the usual provisions in such a policy, and its tenth clause was as follows:" This insurance the risk not being changed, may be continued for such further time as shall be agreed upon, provided the premium therefor is paid and endorsed on this policy or a receipt thereforgiven for the same."

This first count in the declaration sets out, that ten dollars, which was the premium to he paid for this insurance for one year, was paid before this policy was issued and, that on the 1st of August, 1873, which was fifteen days before it expired, it was renewed tor one year, from August 1, 1873, to August 15, 1874, the plaintiff paying the premium of ten dollars on the insurance tor another year, and by agreement in writing, it was continued tor this time; and this agreement is filed with the declaration signed by the president and secretary ot the company, and countersigned by George E. Cordell, the agent of said company in Jefferson county. The count then proceeds-"And the said plaintiff further saith, that afterwards, to-wit, on the 3d day of September, 1874, in consideration of the payment of the sum of ten dollars by the plaintiff to the defendant, the said policy of insurance, by an agreement in writing duly subscribed in that behalf by one George E. Cordell, agent of the defendant at Charlestown in the county aforesaid, the said pollen of insurance was continued from the day last named until the 3d day of September, 1875."

The declaration alleges, that this barn was afterwards, towit, on the 1st day ot April, 1875, wholly destroyed by fire. There are other allegations in this first count not deemed necessary to he stated. The second count and the conclusion of the declaration are as follows: "And whereas, the said defendant, was on the 1st day of April, 1875, indebted to the plaintiff in the further sum of one thousand dollars for money had and received by the defendant, for the use of the plaintiff; and whereas, the defendant afterwards, to-wit, on the 1st day of April, 1875, in consideration of the promises respectively became liable and promised to pay the said several sums of money respectively to the plaintiff on request, yet the said defendant disregarding his said promise, has not paid any of said money or any part thereof to the plaintiff's damage two thousand dollars, and thereupon suit is brought.''

This declaration was demurred to by the defendant, and the court overruled the demurrer, and the defendant pleaded non-assumpsit and issue was joined. This issue was tried by a jury, which being unable to agree were discharged, and afterwards it was again tried by another jury, which on November 15, 1879, rendered a verdict for the plaintiff and assessed his damage at one thousand dollars; and thereupon the court rendered a judgment in favor of the plaintiff in accordance with this verdict, and the defendant moved the court to set aside this verdict and arrest the judgment in this case, which motion the court overruled, and the defendant took his bill of exceptions.

There was no ground for asking this new trial or for arresting the judgment, excepting only errors supposed to hare been committed by the court, and to which exceptions were taken. These exceptions are as follows:

first bill of exceptions.

"Be it remembered that on the trial of this cause, the defendant, having given evidence to support the hypothesis embraced in his fourth instruction, prayed the court to grant the same, which was as follows:

"4th instruction. 'The court instructs the jury that by the terms of the policy filed as a part of the plaintiff's declaration, the insured in case of loss would only be entitled to recover according to his interest in the property insured; and that if they find from the evidence that the estate of Amos Sheppard, dec'd, proved to be solvent, and his debts have all been provided for by the sale of other assets, without the necessity of resorting to the alleged policy of insurance, then that his administrator, John A. Sheppard, has no insurable interest in said property, and cannot recover in this suit.

But the court declined to give this instruction and the plaintiff excepted.

second ...