Tucker v. The Colonial Fire Ins. Co.

Decision Date11 May 1905
Citation58 W.Va. 30
CourtWest Virginia Supreme Court
PartiesTucker v. The Colonial Fire Insurance Company.
1. Isurance Policy Pleadings Surplusage.

The plaintiff in an action on a policy of fire insurance, being required to file a more particular statement of the nature of his claim, files a statement giving notice to the defendant insurance company that it would be held liable for the full face of the policy on the specific property insured thereby, and, in addition, that it would be held liable for the amount of "fixtures, '" not insured thereby, the part of such statement giving notice that the defendant would be held liable for the amount of "fixtures," is immaterial and should be treated as surplusage, (p. 38).

2. Insurance Policy Particular Statement When Sufficient.

Such statement is sufficient if it, in effect, gives notice to the defendant of the nature of the plaintiff's claim, (p. 33.)

3. Insurance Policy Particular Statement Pleadings Practice.

Such statement is not a part of the plaintiff's declaration and cannot be demurred to. If it is too vague or otherwise insufficient, the remedy is to object to the introduction of evidence under it. (p. 33.)

4. Insurance Policy--Particular Statement, Sufficiency of.

Under the statement filed by the plaintiff in this case, it was proper to admit in evidence the policy sued on. (p. 33).

5. Insurance Policy Pleading Practice.

In an action upon a policy of fire insurance, the plaintiff is not required to prove compliance with any clause, condition or warranty contained therein, which the defendant does not, under section 64 of chapter 125 of the Code, by a statement filed, specify plaintiff's failure to perform, &c. (p. 35).

6. Insurance Policy Rule for Construction of.

Clauses, conditions or warranties contained in policies of fire insurance, will be construed most strongly against the insurer where it may fairly be done, in order to avoid a forfeiture or to permit a recovery; in case of doubt fairly arising, the doubt will be resolved against the insurer; and where a clause, condition or warranty admits of two interpretations equally reasonable, the one most favorable to the insured will be adopted, (pp. 35, 36).

7. Insurance PoiACY Reasonable Compliance With, Necessary Only.

In the absence of bad faith, the law requires of the insured only a reasonable and substantial compliance with the clauses, conditions and warranties of a policy of fire insurance, (p. 37.)

8. Insurance Policy Construction of "Inventory Clause."

Where a policy of fire insurance provides that "the assured shall take an inventory of the stock hereby covered, at least once a year during the life of this policy," the assured has a year from the date of the policy in which to make an inventory, although the policy runs for one year only. (p. 36.)

9. Insurance Policy Construction of Clause Promissory Warranty.

Where a clause in a policy of fire insurance provides that the assured "shall keep books of account, correctly detailing-purchases and sales of said stock," and another clause in effect, provides that failure to observe such condition shall work a forfeiture of all claims under the policy, such clause requiring the assured to keep books of account, etc., is a promissory warranty on his part, (p. 40.)

10. Insurance Policy Clause Construed Promissory Warranty.

Where a clause in a policy of fire insurance provides that the insured, "as often as required, shall produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable place as may be designated by this company or its representative, and shall permit extracts and copies thereof to be made," and another clause in effect, provides that no suit or action on the policy for the recovery of any claim, shall be sustained in any court of law or equity, until after full compliance by the insured with the foregoing requirement, such clause requiring the insured to produce for examination all books of account, etc., is a promissory warranty on his part and a condition precedent to his right of recovery on the policy. (P 40.)

11. Insurance Policy Clause and Conditions Construed.

The clause requiring the insured to produce for examination all books of account, etc., as often as required, at such reasonable place as may be designated by the company or its representative, means a reasonable place in the locality where the insured property was situated, in the absence of conditions rendering such place unreasonable, (p. 40).

12. Insurance Policy Demand of Insurer Unreasonable Under Policy.

A demand by the insurer or its representative requiring the insured to produce for examination all books of account, bills, invoices and other vouchers, or certified copies thereof if the original be lost, at a city located about 140 miles from the place where the insured goods were situated, is unreasonable as to place, and the insured is under no 'duty to comply with such demand; and his failure to comply therewith constitutes no breach of the clause of the policy requiring him to produce for examination all books of account, etc., at such reasonable place as may be designated by the company or its representative, (p. 41.)

13. Insurance Policy Proof of Loss Not Evidence of Amount of Loss.

Proof of loss under a policy of fire insurance, is not evidence of the amount of loss, but is admissible in evidence for the sole purpose of showing that proof of loss has been made, as required by the policy, (p. 42.)

14. Insurance Against Fire Witness, Competency of Evidence.

One having sufficient knowledge of the value of property destroyed by fire to speak with intelligence on the subject, may testify as to his opinion of its value, and the weight to be given to his testimony, is a question for the jury. (p. 43).

15. Jury Trial New Trial Immaterial Evidence.

A verdict of a jury will not be set aside because of the admission of irrelevant and immaterial evidence, where the court can see that such evidence was not prejudicial to the party complaining, (p. 43).

Error to Circuit Court, Wood County.

Action by J. W. Tucker against the Colonial Fire Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

V. B. Archer and Wm. Beard, for plaintiff in error. Merrick & Smith and D. C. Casto, for defendant in error.

Cox, Judge:

This is a writ of error by the Colonial Fire Insurance Company to a judgment of the circuit court of Wood county, for one thousand dollars rendered against it in favor of J. W, Tucker, in an action of assumpsit upon a fire insurance policy. The declaration is in statutory form. The first of the many errors assigned, is the admission in evidence of the policy sued on, or rather a copy of the policy, the original being so charred by the fire that to have opened it would have resulted in its destruction. The objection is not on the ground that a copy was introduced, but on the ground that the copy when produced, varied from the statement of the nature of the plaintiff's claim, filed under section 62 of chapter 125 of the Code. The statement is as follows:

"The Colonial Fire Insurance, to J. W. Tucker Dr.

To amount of the policy on stock of goods in the store at Burning Springs, Wirt County, West Virginia............... $1,000.00

To amount of goods and fixtures in the store at Burning Springs, Wirt County, West Virginia, covered by the policy at the time of loss, to-wit: On the 16th day of September, 1901......................................................... $6,900.00."

The policy sued on covered only the stock of merchandise and not the fixtures. The policy is a part of the declaration and discloses this fact. The statement filed includes more than the policy by charging-also for the fixtures. This statement was filed without objection on the part of the defendant and the parties went to trial upon it. Statements under sections 62 and 64 of this chapter are not pleadings but are in the nature of bills of particulars. Cappellar v. Queen Ins. Co., 21 W. Va. 576; Rosenthal v. Scottish Union lns Co., 46 S. E. Rep., 1021. Such statements are sufficient if they in effect give to the party reasonable notice of the nature of his adversary's claim, or defense, as the case may be. The objection here is not that the statement is too vague, but that it includes too much. It is apparent that the defendant by this statement was notified that the plaintiff would claim to the extent of the face of the policy, the amount of the stock of merchandise covered by the policy, and, in addition, the amount of the fixtures not covered by the policy. The defendant being notified that it would be held for everything covered by the policy, it was entirely proper to admit the policy in evidence, and no variance resulted. The addition of the words "and fixtures," should be considered immaterial and treated as surplusage.

The defendant filed a plea denying liability, and also a statement under section 64 of chapter 125 of the Code, specifying that plaintiff had failed to perform certain clauses of the policy, whereby defendant claimed that plaintiff had forfeited all claims under the policy, and was barred from recovering. The statements and specifications of defense are as follows:

"The defense in the above cause, being with other things, that the action cannot be maintained because of the failure to perform and comply with and for the violation of certain clauses, conditions and warranties, provisions and stipulations in the policy sued on. The defendant here specifies the particular clauses, conditions, warranties, specifications and stipulations, in respect to which such failure or violation is claimed to have occurred, which are as follows:

"First. 'It is expressly stipulated that the assured shall take an inventory of the stock hereby covered, at least once a year, during the life of this policy, and shall keep books of account...

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