Simmons v. West Virginia Ins. Co.

• Decision Date: 23 July 1875
• Citation: 8 W.Va. 474
• Parties: SIMMONS v. WEST VIRGINIA INSURANCE CO.
• Court: West Virginia Supreme Court

8 W.Va. 474

SIMMONS v. WEST VIRGINIA INSURANCE CO.

Supreme Court of West Virginia.

July 23, 1875

1. Matter in defeasance of the plaintiff's action need not be stated in the declaration; wherever there is a circumstance, the omission of which is to defeat the plaintiff's right of action, prima facie well founded, whether called by the name of a proviso, or a condition subsequent, it must, in its nature, be a matter of defence, and ought to be shown in the pleading, by the opposite party. It is sufficient to state in the declaration those parts of the contract whereof a breach is complained of; or, in other words, to show so much of the terms beneficial to the plaintiff in a contract as constitutes the point for the failure of which he sues; and it is not necessary or proper to set out in the declaration other parts not qualifying or varying in any respect the material parts above mentioned.

2. But if the defendant's promise or engagement, whether it be verbal or in writing or under seal, embody, or contain as part of it, an exception or proviso, which qualifies his liability; or in certain instances renders him altogether irresponsible, so that he was not in law absolutely bound, the declaration must notice the exception or proviso or there will be a fatal variance; but it is not necessary to negative such exception or proviso by an averment in the declaration. Where, however, the proviso in a written instrument is distinct from and not even referred to by the clause on which the debt is charged, it is considered matter in defeasance, & c., which ought to come from the other side, and then it need not be set forth by the plaintiff. It is also a general rule of pleading that matter which should come more properly from the other side need not be stated.

3. In the declaration on a policy of insurance it is stated as one of the conditions precedent that the assured should produce a certificate under the hand and seal of a magistrate, notary public, or commissioner of deeds (nearest the place of fire and not concerned in the loss, as a creditor or otherwise nor related to the plaintiff,) correct, fair pleading requires that the kind of officer should be stated in the declaration, that the court may determine whether it was the proper officer. The production of the certificate of one of the officers specified, is a condition precedent, and must be complied with, unless properly waived by defendant. It is best and correct to state the name of the officer.

4. The declaration in describing the term for which the policy was in force, alleges that it was " from the said 6th day of January, 1870, until the 6th day of January, 1871," whereas the policy says, " from the 6th day of January one thousand eight hundred and seventy, at noon, to the sixth day of January, one thousand eight hundred and seventy-one at noon" --this is a material variance between the policy described and the policy produced.

5. Where the declaration fails to state all the exceptions contained in the policy which materially qualify the defendant's liability, or exempts the defendant from all responsibility, absolutely, in certain instances, the variance is fatal.

6. The declaration alleges that the insurance money was to be paid to the plaintiff in sixty days after notice and proof of the same, & c., while the policy produced states " the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid sixty days after due notice and proof of the same, by the assured and received at this office, & c." --there is a material variance as to the time the money become payable.

7. Where the plaintiff's application for insurance contains warranties which are not attached to the policy, in whole or in part, or set out in the policy, it is not necessary for the plaintiff to state such warranties in his declaration--they are matters in defeasance of the plaintiff's action--they are matters which should more properly come from the other side.

8. Under the evidence and peculiar circumstances of this case, as stated in the opinion of the Court, it was not error in the court below to refuse to give the following instructions asked by the defendant, viz: " If the jury believe that the chimney and pipes in the room occupied by the plaintiff, and which contained the goods destroyed by fire, were not kept well secured during the time between making the insurance and the happening of the loss, the jury must find for the defendant, and the warranty is broken by permitting the pipes to remain in the same condition as at the time of insurance, if they were not well secured at that time." " The application No. 321, made by the plaintiff to the defendant being specially referred to in the policy sued on in this case, and by the terms of said policy is the plaintiff's express warranty, and binding on him in this case. If that application is in any respect false or untrue, or the plaintiff has failed to comply, in any and every particular, with his promises or agreements therein contained, as if the plaintiff has failed to keep chimneys, fire places, stoves and pipes all well secured, the policy becomes void as between the plaintiff and defendant."

9. Under the said evidence and peculiar circumstances of the case it was not error for the court below to instruct the jury, at the instance of the plaintiff, as follows: " If the jury find that the agent of the defendant, who took the application, had, at the time, a knowledge of the building, and the manner in which the stovepipe and chimney were secured at the time the insurance was effected, and took upon himself to fill up the blank application, and did so upon his own information, then it was not required of the plaintiff, under the policy, to change the condition of the pipe and chimney, but he was required to keep them in good order and condition, but was not required to put them in better order and condition than they were in at the time the insurance was made."

10. Evidence having been given to the jury in this action which is based on a policy of insurance against loss and damage by fire, tending to prove that the plaintiff intentionally and fraudulently caused the insured property to be set on fire and destroyed, and that the loss or damage claimed in plaintiff's declaration was occasioned by such act of the plaintiff, and the plaintiff having given evidence to the jury tending to rebut such evidence of the defendant, and tending to prove the contrary, it was error in the court--under the issue joined in the case--to refuse to give to the jury the following instruction, asked by the defendant, viz: " It is not necessary, in order to prevent the plaintiff's recovery that the plaintiff should be proved beyond a reasonable doubt to have intentionally and fraudulently caused or permitted the said insured property to be set on fire, but if the weight or preponderance of evidence be to that effect the jury should find for the defendant."

Supersedeas to a judgment of the municipal court of Wheeling, rendered on the 28th day of August, 1871, allowed on the petition of the West Virginia Insurance Company--the defendant below. The plaintiff was James H. Simmons. The other facts appear in the opinion of the Court.

The Hon. M. C. Good, judge of said municipal court, presided at the trial below.

Daniel Lamb and William P. Hubbard for the appellant.

C. W. B. Allison for the appellee.

Haymond, President:

This is an action of assumpsit founded on a policy of insurance made by the defendant to the plaintiff on the 6th day of January, 1870. The policy insures the plaintiff against loss or damage by fire to the amount of $2,000 on his stock of dry goods, groceries, queensware, hats, caps, boots and shoes, and such other articles of merchandise as are usually kept in a country store, all contained in the one story frame building situate on the south side of State street, in the town of Portland, Preston county, West Virginia, and occupied by assured as a store room, subject to certain exceptions, conditions, & c., some of which are hereinafter considered.

The declaration alleges that the property, so insured, was accidentally destroyed by fire on the 21st day of January, 1870.

The action was brought in the municipal court of Wheeling on the 7th day of May, 1870, and judgment was rendered therein in favor of the plaintiff against the defendant on the 28th day of August, 1871.

The defendant demurred to the plaintiff's declaration, and the court overruled the demurrer.

The defendant then pleaded non-assumpsit. This plea seems to have been filed on the 19th day of September, 1870, and at the same time the defendant filed two other pleas; one of which avers, that the plaintiff, in making the statement, under his signature and verified by his oath, purporting to be such particular account of the loss or damage sustained by him by reason of the destruction by fire of the property mentioned and intended to be insured by the said policy of insurance, was guilty of fraud and false swearing; and the other avers, that the plaintiff intentionally and fraudulently caused and permitted the said insured property to be set on fire and destroyed on the said 21st day of January, 1870. Upon each of these pleas issue was regularly made up and joined.

Subsequently, and on the 3rd day of February, 1871, the defendant filed three additional pleas numbered respectively in the record four, five and six.

Plea No. 4 it is unnecessary to consider, as no question arises upon it, so far as the record discloses.

Plea No. 5 avers, substantially, that in said policy special reference is made to an application in writing made by the plaintiff No. 321, which was his warranty and a part...