Welch v. Insurance Co.

• Decision Date: 15 December 1883
• Citation: 23 W.Va. 288
• Court: West Virginia Supreme Court
• Parties: Welch v. Insurance Co.

23 W.Va. 288

Welch

v.Insurance Co.

Supreme Court of Appeals of West Virginia.

Submitted June 7, 1883

Decided December 15, 1883.

1. In an action of assumpsit based on a policy of insurance against fire, the insuranee was on the stock of wool of the assured in a certain building, and there was in the policy a clause, that "if the interest of the assured in the property be any other than the entire unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company and so expressed in the written part of the policy, otherwise the policy should be void." This stock of wool insured was not so represented to the company nor was it so expressed in the written part of the policy, but was represented as the property of the assured and so expressed in the written part of the policy. It was proven by the plaintiff, that this stock of wool, which had been destroyed by lire, was purchased by a third person according to terms set forth in a letter from him to the assured. His letter was thus worded: ''I propose this: You furnish the money; I will buy the wool, handle, store, hear one-half of the expense of insurance, interest, &c, for onehalf the profit or one-half the loss. You hold the wool as your own to secure you for the investment." At the trial he asked this instruction of the court: "If the jury believe from the evidence, that the arrangement between the assured and this third person, under which the wool in controversy was bought and held, was that expressed in this letter, then there was a partnership between the assured and this third person in the profits or the losses of the transaction, still the interest of the assured in the wool itself was the entire sole and unconditional ownership within the meaning of this policy." Held:

The court should have given this instruction, (p. 310.)

2. This third person being also an agent for a number of other parties

in purchasing wool and putting this wool he bought all in the same warehouse whether purchased for the assured or others, and this warehouse having been burned by lire, aad this thirl person as a witness for the plaintiff having testified that all the wool in the warehouse when burned was the plaintiff's, and that there was in it a certain number of pounds of wool worth so much, which was completely destroyed by the fire, and on cross examination it having appeared that his only means of knowing the quantity of wool in this warehouse burned was by subtracting from the quantity of wool he had bought for the assured and others and put in this warehouse the qua atity he had taken from it and shippei, and he having produced his books to show the quantity thus purchased and shipped, the defendants ware properly permitted to call numerous witnesses to contradict this witness and show that the entries on these books with refjrenee to the quantities of wool purchased for the plaintiff as well as for others were false, (p. 302.)

3. Depositions read before a jury ought not, against the protest of

one of the parties to a suit, to be permitted to be taken to the jury-room on their retirement, (p. 308.)

4. In such a case the court ought not to permit witnesses to be

called as experts and their opinions to be given as to whether the quantity of wool claimed to have been burned in this warehouse could have been completely destroyed in the burning of a build ing of the size of the warehouse, this not being a question, on which expert-testimony should be beard, (p. 305.)

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

At the October rules, 1879, D. B. Welch filed his declaration in assumpsit in the municipal court of Wheeling against the Franklin Insurance Company, in which it was stated that the defendant on February 27, 1879, made a policy of insurance, whereby for a valuable consideration, stated, the said defendant insured the plaintiff "against loss or damage by fire to the amount of eight thousand five hundred dollars on his (the said plaintiff's) stock of wool contained in the one and one half story frame shingle roof building situate in the town of Fairview, in the county of Harrison and State of Ohio." The time this insurance was to last is stated to be from February 27, 1879, at twelve o'clock at noon to the 29th day of March, 1879, at twelve o'clock at noon. All the provisions of this policy arc set out in detail and so many of them as are deemed necessary will be hereinafter stated. The declaration then proceeds: "And the said defendant then and there to-wit on the day and year aforesaid, at th said city of Wheeling, delivered the said policy of insurance to the said plaintiff; and the said plaintiff says, that at the time of the making of the said insurance and thence until it was destroyed by fire, as hereinafter set forth, the said stock of wool in said policy mentioned was his, the said plaintiff's, and that his interest in the same was the entire unconditional and sole ownership." The declaration then alleged, that this stock of wool was burned, demolished and destroyed by fire on the 21st day of March, 1879. The declaration then sets out in detail the performance by this plaintiff of every act required by the said policy of insurance to be by him performed, and also the happening of all things, which it was necessary should have happened, to entitle the plaintiff to recover of the defendant three thousand six hundred and five dollars and seventeen cents. And being liable to pay the same the defendant undertook and promised the said plaintiff to pay him the said sum of three thousand six hundred and five dollars and seventeen cents, when he should be thereunto requested. The damages are laid at five thousand dollars.

This declaration was demurred to by the defendant, and in the demurrer theplaintiff joined issue, and. the court overruled the demurrer. I have not stated the declaration more fully, because in this Court it is not claimed, that the municipal court erred in overruling this demurrer. The declaration is very full and basin it, so far as it appears to me every allegation necessary to be inserted in such a declaration.

The defendant also pleaded 'non-assumpsit, and issue was joined; and on the 20th day of November, 1879, in open court the defendant under section 4 of chapter 66 of Acts of 1877 p. 90, filed the following plea and statement of defence:

"The defence in the above action being, among other things, that the action cannot be maintained because of the failure to perform and comply with, and the violation ot, cer- tain clauses, conditions and warranties in the policy in said declaration, mentioned, said defendant here states the particular clauses, conditions and warranties in respect to which such failure and violation is claimed to have accrued, to-wit:

"1. The clause providing that if the interest of the assured in said property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise should not be truly stated in said policy, then said policy should be void.

"2. The clause providing that if the interest of the said assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the said assured, it must be so represented to the said defendant and so expressed in the written part of said policy, otherwise the said policy should be void.

"3. That4 all fraud or attempt at fraud, by false swearing or otherwise, should cause a forfeiture of all claim on the said defendant under the said policy."

The plaintiff replied generally to this plea, and issue wras joined; and on the 10th day of February a jury was sworn to try the issues. The trial continued till February 14, 1880, when the jury found for the plaintiff and assessed his damages at three hundred and ten dollars. The plaintiff then moved the court to set aside this verdict and grant him a new trial, which motion the court continued till the next term. It then and for several terms continued the motion and case, and on the 22d day of April, 1881, it entered up the following judgment:

"This 22d day of April, A. D. 1881, came the parties, by their attorneys, and the arguments of counsel having been heard by the court on the motion heretofore made by the plaintiff to set aside the verdict and grant in this action a new trial, and the same, with said motion having been maturely considered by the court, it is ordered that the said motion be and is hereby overruled. To which ruling of the court the defendant excepted, and tendered his bill of exceptions, and asked that it be signed and sealed by the court and made a part of the record therein, which is here accordingly done. Thereupon it is ordered by the court that the plaintiff, I). B. Welch, recover of and from the defendant, the Franklin Insurance Company, the sum of three hundred and ten dollars in the verdict mentioned, with interest from, the 14th day of February, A. I). 1880, until paid, and his costs about his suit in this behalf expended。'

The bill of exceptions referred to sets out all the evidence given at the trial. The evidence given by D. B. Welch is as follows:

"I reside in Cadiz, Harrison county, Ohio, about seventeen or eighteen miles from Fairview, which is in the same county. I suffered a loss under the policy which has been introduced in evidence, the wool insured by it having been destroyed by fire on the night of March 21 and morning of March 22, 1879. At the time of the fire I was at Cadiz. On the morning of March 22d, I reached Fairview about 11 o'clock. I had not seen the wool for ten days or two weeks before. The building was entirely consumed when I got there. I saw smouldering embers. I have no knowledge as to amount of wool. The wool was mine, and it was taken care of by James Aiken who resided in Fairview. He purchased it for me with my money. He purchased it for me as my agent. There was no written agreement regarding purchase of wool for me. I...