Woolpert v. Franklin Ins. Co.

• Decision Date: 05 December 1896
• Citation: 26 S.E. 521,42 W.Va. 647
• Parties: WOOLPERT v. FRANKLIN INS. CO.
• Court: West Virginia Supreme Court

26 S.E. 521

42 W.Va. 647

WOOLPERT v. FRANKLIN INS. CO.

Supreme Court of Appeals of West Virginia.

December 5, 1896

Submitted September 17, 1896

Syllabus by the Court.

1. An insurance agent authorized to solicit business for his company, and to issue policies, is, within the general scope of the business he transacts, pro hæc vice the insurance company. He may waive forfeitures and conditions in the policy, and may consent to prior or subsequent insurance on the property, although the policy issued by him contains a provision that such prior or subsequent insurance taken on the property will render the policy then issued void.

2. It is a general principle of law that in order to avoid a policy on account of subsequent insurance, against an express condition therein, it must appear that such subsequent insurance is valid, and can be enforced. If it cannot be enforced, it is no breach of the condition of the prior policy.

Error to circuit court, Jefferson county.

Action by B. A. Woolpert against the Franklin Insurance Company. Judgment for plaintiff. From a judgment setting it aside, and awarding a new trial, plaintiff brings error. Reversed.

George Baylor, for plaintiff in error.

Forrest W. Brown and W. P. Hubbard, for defendant in error.

ENGLISH J.

This was an action of trespass on the case in assumpsit, brought in the circuit court of Jefferson county, by B. A. Woolpert against the Franklin Insurance Company, a corporation existing under the laws of the state of West Virginia, to recover from the defendant the sum of $800, with legal interest thereon from the 17th day of February, 1892, which the plaintiff claims the defendant owes him by virtue of a policy of insurance bearing date on the 20th day of February 1892, for loss in respect to the property insured by said policy, caused by fire on or about the 17th day of February 1892, at Charlestown, Jefferson county, W.Va. The policy of insurance upon which this suit was predicated reads as follows:

"Policy of Insurance.

"No. 76,277. $800.00.

"By this policy of insurance, the Franklin Insurance Company, at Wheeling, West Va., in consideration of the receipt of six dollars, and the representations, covenants, and warranties of the assured hereinafter named, do insure B. A. Woolpert against loss or damage by fire, to the amount of eight hundred dollars ($800.00), on stock merchandise, consisting of dry goods, groceries, notions, tobacco, cigars, contained in two-story frame, tin-roof building on corner of Washington and Lawrence street, in Charlestown, Jefferson county, West Virginia. And the said company hereby agrees to make good unto the said assured, the executors, administrators, and assigns, all such immediate loss or damage, not exceeding in amount the sum or sums insured, as above specified, nor the interest of the assured in the property, except as herein provided, as shall happen by fire to the property so specified, nor the 20 day of April, one thousand ___ and 91, at twelve o'clock at noon, to the 20 day of April, one thousand eight hundred and 92, at twelve o'clock at noon, the amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, making due allowances for depreciation by use or otherwise, and to be paid at their office in the city of Wheeling, W. Va., sixty days after due notice and proofs of the same shall have been made by the assured and received at said office, in accordance with the terms and provisions of this policy hereinafter mentioned, unless the property be replaced or the company shall have given notice of their intention to rebuild or repair the damaged premises.

"(1) If this insurance is procured upon an application, survey, plan, or description of the property herein insured, whether referred to or not in this policy, such application, survey, or plan, or description shall be considered a part of this contract and a warranty by the assured; and any false representation by the assured of the condition, situation, or occupancy of the property; or any omission to make known every fact material to the risk, or an over valuation, or any misrepresentation whatever, either in a written application or otherwise; or if the assured shall have or shall hereafter make any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon; or if the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant or unoccupied, without notice to and consent of this company in writing; or the risk be increased by the erection or occupation of neighboring buildings, on by any means whatever within the control of the assured, without the assent of this company indorsed hereon; or, if it be a manufacturing establishment, running, in whole or in part, over or extra time, or running at night; or if it shall cease to be operated without special agreement indorsed on this policy; or if the property insured, or any part thereof, shall be alienated by sale or otherwise; or if any part thereof shall be alienated by sale or otherwise; or if the property be sold or transferred, or any change take place in the 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 the company indorsed hereon; or if the interests of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy; or if the assured shall keep gunpowder, fireworks, nitroglycerine, phosphorus, saltpeter, nitrate of soda, petroleum, naptha, gasoline, benzine, benzole, or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid or chemical oils without written permission in this policy,--then, and in every such case, this policy shall be void."

"(4) 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, or if the building insured stands on leased ground. It must be so represented to the company, and so expressed in the written part of this policy; otherwise, the policy shall be void. When the property has been sold and delivered or otherwise disposed of, so that all interest or liability on the part of the assured herein named has ceased, this insurance on such property shall immediately terminate. Goods held on storage must be separately and specifically insured."

"(7) In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon, without reference to the solvency or the liability of the insurers; and it is hereby declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured, subject to the conditions of average, this policy shall be subject to average in like manner."

"(9) Persons sustaining loss or damage by fire shall forthwith give notice of said loss to the secretary of the company, and, within thirty days thereafter, render a particular account of such loss, signed and sworn to by them, stating whether any and what other insurance has been made on the same property, giving copies of the written portion of all policies thereon, also the actual cash value of the property and their interest therein, for what purpose and by whom the building insured or containing property insured, and the several parts thereof, were used at the time of the loss, when and how the fire originated, and shall also produce a certificate, under the hand and seal of a magistrate or notary public (nearest to the place of the fire, not concerned in the loss as a creditor or otherwise, nor related to the assured), stating that he has examined the circumstances attending the loss, knows the character and circumstances of the assured, and verily believes that the assured has without fraud sustained loss on the property insured, to the amount which such magistrate or notary public shall certify. The assured shall, if required, submit to an examination or examinations, under oath, by any person appointed by the company, and subscribe to such examinations when reduced to writing, and shall also produce their books of the account and other vouchers, and exhibit the same for examination at the office of the company, and permit extracts and copies thereof to be made. The assured shall also produce certified copies of all bills and invoices, the originals of which have been lost, and shall exhibit all the remains of the property which was covered by this policy, damaged or not damaged, for examination, to any person or persons named by the company. In case of loss on property held in trust or on commission, or if the interest of the assured be other than the entire and sole ownership, the names of the respective owners shall be set forth together with their respective interests therein. If this policy is made payable in case of loss to a third party, or held as collateral security, the proofs of loss shall be made by the party originally insured, unless there has been an actual sale of the property insured. All fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy."

The defendant filed its plea under the statute, saying, in general terms, that it was not liable to the plaintiff, as in said declaration was alleged. The defendant also filed several statements...