Va. Fire & Marine Ins. Co v. Buck

• Decision Date: 14 December 1891
• Citation: 13 S.E. 973,88 Va. 617
• Court: Virginia Supreme Court
• Parties: Virginia Fire & Marine Ins. Co. v. Buck et al.

13 S.E. 973

88 Va. 617

Virginia Fire & Marine Ins. Co.

v.Buck et al.

Supreme Court of Appeals of Virginia.

Dec. 14, 1891.

Actions on Insurance Policies—Evidence—Applications—Right to File Special Pleas.

1. The statute which allows the defendant to plead as many matters of defense as he may elect, does not confer upon him an absolute right to file special pleas setting up defenses which are already covered by other pleas; and, although such a plea has been recoived, and issue joined upon it, it is still competent for the court to strike it out.

2. In an action on an insurance policy the refusal to allow the defendant on cross-examination to ask a witness, who has previously testified that he had been employed as watchman, how much he was paid for his services, is not error, as the jury cannot measure the watchman's diligence by the amount of his pay, and the only inquiry is whether he was in fact so employed.

8. An insurance company has no right, in an action on a policy, to inquire whether a certain person had obtained "other insurance" for the plaintiff in violation of a provision of the policy, without having first established that the said person was the plaintiff's agent, or at least satisfied the court that it would subsequently do so.

4. One of the questions in an application for insurance was as to the length of time that the plaintiff had been merchandising, and who slept in the store. The answer was, "Four years; watchman on premises at night." Held, that the answer amounted only to a warranty that the plaintiff had a watchman on the premises at the time of the application, not that he would continue to keep one there; and hence the absence of the watchman without the plaintiff's knowledge on the night of the fire was no defense.

Error to circuit court, Montgomery county.

This was an action by Buck & Newsom against the Virginia Fire & Marine Insurance Company on a policy of insurance. There was judgment for plaintiffs and defendant brings error. Affirmed.

W. W. & li. T. Crump, for plaintiff in error.

Burks & Campbell, for defendants in error.

Hinton, J. This was an action of case in assumpsit on a policy of insurance. Issue was joined on the plea of non assumpsit, and the defendant company, in accordance with a practice common in the circuit courts of this state, obtained leave to file special pleas within GO days. The effect of granting leave to file these pleas in the clerk's office is twofold: It gives the defendant additional time within which to plead, and it gives the plaintiff timely notice of the defense to be set up, and thus prevents surprise and delay at the succeeding term. In these respects the practice is convenient. It seems, however, to have no other advantage, since the clerk can only receive and file the pleas, and the plaintiff cannot reply or demur to the pleas and make up an issue. Three special pleus were filed in the clerk's office. To the first of these no objection was made; but the plaintiffs, treating the other two as tendered by the filing in the clerk's office, moved the court to reject them, which was accordingly done. The defendant then tendered a fifth plea, which, on the plaintiffs' motion, was also rejected. The rejection of these three pleas constitutes the first assignment of error. Upon this point we shall spend but little time, because, in the opinion of this court, every fact might have been proved under the general issue in the case which could have been proved under either of these pleas. Their rejection, therefore, could not have prejudiced the defendant. "The fact is undeniable, " says Mr. Minor, in his Institutes, "that for more than a century past there has been admitted, under the plea of non assumpsit, in all actions of assumpsit, whether founded on an implied or express promise, any matter of defense whatever (the same as in the case of nil debit) which tends to deny his liability to the plaintiff's demands." 4 Minor Inst. p. 645. And at page 641 of the same volume the author says: "Under the plea of nil debit the aefendant may prove at the trial coverture when the promise was made, lunacy, duress, infancy, release, arbitrament, award and satisfaction, payment, a want of consideration for the promise, failure or fraud in the consideration, and, in short, anything which shows there is no existing debt due. The statute of limitations, bankruptcy, and tender are believed to be the only defenses which may not be proved under this plea, and they are excepted because they do not contest that the debt is owing, but insist only that no action can be maintained Jor it." And to the same effect seem to be all the authorities. 1 Chit. PI. (4th Amer. Ed.) § 18; Steph. PI. (4th Amer. Ed.) p. 162, note 20: 1 Rob. Pr. 210; 5 Rob. Pr. 259. Nor can this court assent to the proposition that the statute which allows the defendant to plead as many matters of defense as he may elect confers upon him the "absolute right" to file special plsas setting up defenses covered by a plea already received. Such a construction of the statute would be inconsistent with the authorities already cited, and, so far as we can see, could serve no good purpose. This same suggestion seems to have been made in Fant v. Miller, 17 Grat. 47; but said Joynes, J.: "I think the object of the [special] plea was to set up the defense that the plaintiffs were not bona tide holders of the note on which the action was founded. That defense, however, might have been made, as. in point of fact, it was made, under the plea of nil debit, upon which issue had already been joined in 1853. The plea was therefore wholly unnecessary, and this would have been good ground for rejecting it when offered, if it had been objected to, (Reed v. Hanna's Ex'r, 3 Rand. (Va.) 56; and it wus competent for the court to strike it out after it was received, even though issue had been joined upon it. Kemp v. Mundell, 9 Leigh, 12. The plaintiffs in error, not having been deprived of any de-fense by the striking out of this plea, have not been injured by it, and cannot complain. The multiplication of issues by special pleas tends to embarrass the jury, and ought not to be encouraged, ' except in cases where, by law, the defense would otherwise be excluded or rendered unavailing.'" It is...