Stolle v. Fire

• Decision Date: 01 May 1877
• Citation: 10 W.Va. 546
• Court: West Virginia Supreme Court
• Parties: Stolle v. iETNA Fire and Marine Insurance Company. (Absent, Johnson, Judge)

10 W.Va. 546

Stolle

v. iETNA Fire and Marine Insurance Company.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

1. The courts will enforce a provision in a policy in an insurance

against fire, prohibiting, under penalty of forfeiture of the insurance, a transfer of the policy before the loss occurs.

2. The assured having a right, by the terms of a policy of insur-

ance against tire, to terminate it at any time, and to have returned to him the premium paid, less the customary short rates for the time the insurance has continued, was prevented from exercising this right by the statement of the secretary of the company that a transfer of the policy to a certain person did not require his approval in writing, though the policy on its face did so require, such conduct on his part is a waiver of the provision avoiding the policy by reason of the transfer thereof to such person with the consent of the company in writing.

3. A general insimul computassent count is sustained by proof

of an adjustment of the amount due from the defendant to the plaintiff" on account of a loss, by fire, of the property insured,

4. A demurrer to the evidence, by the defendant, admits all that

can reasonably be inferred by a jury from the plaintiff's evidence, and waives all the defendant's evidence that contradicts the plaintiff's, or the credit of which is impeached, and all inferences from the defendant's evidence that do not necessarily flow from it.

5. A declaration, and each count thereof, was demurred to; the

court overruled the demurrer when it should have sustained the demurrer to the first count, because of the informal and imperfect manner in which the cause of action was stated in it, and should have overruled the demurrer to the second. count. The defendant demurred to the evidence; the facts-proven did sustain the second count in the declaration, and would have sustained the first count, had it been drawn as it should have been. The circuit court gave judgment for the plaintiff. The appellate court should affirm this judgment.

This was a supersedeas granted, upon the petition of the defendernt below, to a judgment of the circuit court of Kanawha county, rendered on the 22d day of December, 1875, in a suit then pending in said circuit court in which Gustave Stolle, was plaintiff, and The AEtna Fire and Marine Insurance Company of Wheeling, was defendant.

Gueen, President, who delivered the opinion of the court, sufficiently states the case.

The Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the judgment below.

Wm. H. Hoegman, for plaintiff in error, referred the court to the following authorities:

May on Ins., §380; 67 Pa., St. 373; Smith v. Saratoga Ins. Co., 1 Hill (N. Y.), 497; 6 Rob. Pr., 293; Minium v. Ins. Co., 10 Gray (Mass.), 507.

C. E. Doddridge, W. A. Quarrier and Smith & Knight, for the defendants in error.

Smith & Knight's brief in the case is filed and refers to the following authorities:

Code W. Va., 605, §39 603, §28, 29; Stevens' PL, 394, 405; 1 Chitty PL, 445, 462, 551; Commonwealth v. Fry et al, 4 W. Va. 721; 1 Rob. (old), Pr. 404-5; 2 Phil., on Ins., §2151; 1 Rob. (old), Pr. 351-2; 5 Gratt., 364.

Green, President, delivered the opinion of the Court:

The plaintiff in this cause brought an action of assumpsit in the circuit court of Kanawha county, against the defendant. The writ was returnable to September rules, 1874. The basis of the action was a policy of insurance against fire, issued by the defendant to James L. Field, on June 23, 1873, whereby, in consideration of $30, they insured him against loss or damages by fire to the amount of $1,000 on his stock of groceries, canned goods, wooden-ware, cigars, tobacco and such other merchandise as is usually kept in a retail grocery store, contained in a certain store house in Charleston. The insurance was for one year from date of policy. The policy contained all the provisions set forth in the policies of insurance in the cases of William A. Quarrier v. The Peabody Insurance Co. and William A. Quarrier v. The AEtna Fire and Marine Insurance Co., of Wheeling, decided at the present term of this Court in the report of which the material portions of these policies are set forth. The only additional provision in this policy sued on in this case is, "if the property be sold or transferred, or any change take place in title or possession, whether by legal process or judicial decree, or voluntary transfer, or conveyance; or if this policy shall be assigned before a loss, without the consent of this company endorsed hereon; then this policy shall be void." On the return day of the process, the defendant filed a plea to the jurisdiction of the Court which plea was a copy of the pleas to the jurisdiction filed in aforesaid cases, decided at this term of the Court, and on motion of plaintiff the court struck out these pleas as defective. There was no error in stricking out this plea for the reasons assigned in my opinion in these cases. See 10 West Va., p. 507. The declaration in this case was very similar to the declaration in those cases. The only difference being that in this declaration it was alleged, "that on the 29th day of August, 1873, the said Field sold all his interest in said property and goods to the plaintiff and for value received the said Field did at the same time by writing on the back thereof, assign and set over to plaintiff (by name of Gus, Stolle), and his as- signs, all his title and interest in said policy, and all ad-vantage to be derived therefrom which assignment was afterwards approved by the said company and the said plaintiff then continued to carry on the same business at the same place and under the said policy, as had been theretofore done by the said Field." The defendant demurred to this declaration, and each count thereoi, and the court overruled the demurrer. This declaration had in it all the defects specified in my opinion in the aforesaid cases, decided at the present term of this Court, and without considering whether there were any other defects, the defects pointed out in those cases were such that the demurrer to the first count of this declaration ought to have been sustained. The defendant also offered a special plea, which, though defective in form, did present a substantial defense to the first count of the declaration, to which count it should have been plead, and not to the declaration generally. The plea setting forth the provision in the policy above quoted proceeded, "notwithstanding said provision, and without the knowledge or consent of the defendant, the insured named in said policy, to-wit, James L. Field, after the execution of said policy, and before the fire in the declaration mentioned, to-wit: on the 23d day of June, 1873, sold and transferred the property, together with the possession thereof, in such contract described, to the plaintiff, and did also after the execution of said policy, and before the fire in the declaration described, to-wit, on the 23d day of June, 1873, assign the said policy to the plaintiff, of all of which the defendant had no knowledge, until after the alleged adjustment in the declaration mentioned, by reason whereof the said contract or policy of insurance became, was, and is absolutely void." This plea was rejected by the court, probably because the court considered the first count in the declaration as a count on the alleged adjustment and not on the policy, though for the reasons stated in the cases before referred to, this first count was a defective count on the policy, and not a count on the adjustment. To this action of the court the defendant excepted. The defendant then filed the plea of nonassumpsit, and issue was joined upon it, and a jury was sworn to try the issue, and the defendant filed a demurrer to the evidence. Whereupon the parties agreed that if the court should decide the law on the demurrer to the evidence to be for the plaintiff, the damages to be assessed in favor of the plaintiff should be $1,000. This agreement was in writing, and signed by the counsel of the parties, and the jury was thereupon discharged.

The demurrer to the evidence shows that all the facts necessary to make the defendants liable upon the policy, if the fact that the property assured belonged to Field when this insurance issued, and had been sold by Field to the plaintiff before the fire, can be held to be sufficiently proven, and that the defendant approved in writing by endorsement thereon the assignment of the policy, or if such approval has been legally waived by the defendant.

In considering the question whether these facts are sufficiently established, we must bear in mind that the case comes before us on a demurrer to the evidence filed by the defendant, and that the rule in such case is," that the demurrant must be considered as admitting all that can reasonably be inferred by a jury, from the evidence given by the other party; and as waiving all the evidence on his part which contradicts that affirmed by the other party, or the credit of which is impeached, and all inferences from his own evidence which do not necessarily flow from it." Muleman v. National Insurance Company, 6 W. Va., p. 508. "With this as the proper rule in applying the evidence, I think the evidence establishes the right of the plaintiff to recover on a proper suit based on the policy. There is no direct proof that Field, at the time the policy of insurance was issued, owned the stock of goods named in the declaration, or that he afterwards sold them to Stolle, the plaintiff. But the policy itself, which was in evidence, recites that these goods were his, the said Field's; and the proof shows that the loss to the plaintiff by the destruction of these goods by fire, during the continuance of the policy, exceeded $1,000. From these, a jury might reasonably infer that the goods insured belonged to Field when the policy issued, and that they had been transferred to Stolle...