Deitz v. Prov. Wash. Ins.

11 S.E. 50, 33 W. Va. 526, 1890 W. Va. LEXIS 20

• Court: West Virginia Supreme Court
• Decided: March 15, 1890
• Status: Published

Opinion

Luoas, Judge :

The first error assigned by the defendants, as appears by the petition, is the refusal of the court to permit certain questions to be propounded to the plaintiff, John K. Deitz, as follows :

1. “ Had you license to sell liquors at the time the fire occurred ? ”

2. “ Have you been frequently indicted for selling liquors at that saloon contrary to law ? ”

3. “ Hid you not tell Geo. Pfeiffer that you were getting too old to work in the shop and make a living, and were it not for selling beer, etc., with or without license, that you could not get a living ? ”

The policy itself states, on its face, that the first floor of the two-story, frame, shingle roof building insured was occupied “ as a saloon.” The question, obviously, therefore, was not intended to throw light on the character of the risk, or upon any other issue legitimately involved. The object, so far as it can be conjectured from the obvious effect of the questions, was to prejudice the minds of the jury against the witness, and the first two questions were properly ruled out by the court. The third question was liable to the same objection, and to the further objection of introducing into the case the circumstances, or indigence of the plaintiff, an inquiry too remote from any issue involved to be the occasion of any relevant or proper .inference by the jury, as was decided in reference to a similar question in Campbell v. Lynn & Co., 7 W. Va., 665. In that case, the defendant offered to give evidence to the jury — “ That the plaintiff was, during said three years, and ever since has been, in very poor, and very needy circumstances, pecuniarily,” and this Court held that it was properly ruled out.

What has been said disposes, likewise, of the six questions propounded to George Pfeiffer,- and the exception based upon the ruling of the court in excluding them. They related entirely to the plaintiff’s selling whiskey, and being in poor circumstances. I may remark that the defendant did succeed in getting in the evidence, through the witness Rutledge, that the plaintiff had been indicted for selling spirituous liquors, and the only remaining matter of ultimate exclusion in the questions above referred to was as to the indigence of the plaintiff, and I can not think it a legitimate inference that a man has been guilty of arson, because he is poor.

The other interrogatories excluded were those propounded to Mary Belle Lane, who testified that she worked for Mrs. Heitz, both before and since the fire, that the last time she was in the house before the fire was in the spring of 1886. She was then asked, “ What was in the house at that time, in the way of beds, furniture ¿•c?”

I can not see any pertinency in this question, standing alone, unless it was intended to affect the valuation of the personalty in the dwelling-house insured. For this purpose, looking to the facts that this was not at or about the time of insurance, but nearly six months before, and that the clerk of the agent had himself, according to his testimony, inspected the personalty at the time and inserted its value in the policy, I think the question was properly overruled. If it was intended to connect it, and follow it up by further evidence, which would render it proper, the defendant, on the responsibility of counsel, should have so stated to the court, and what the further evidence was expected in substance to be.

The same may be said of the succeeding question, “What furniture ivas in the new house built after the fire?” This question, standing isolated as it does, had no possible bearing on the case; had counsel stated that they expected to follow it up by further evidence ou the part of this witness, or some other, that the furniture in the new house was identical with that which the plaintiff had sworn was burned, that might have made it relevant, but in the absence of any such intimation, the court did not err in excluding it.

These were all the questions excluded; and I think there was no error.

The second assignment is as follows : The Court erred in refusing to set aside the verdict and grant a new trial, because of the rejection of proper evidence and the giving of improper instructions for plaintiff and refusing proper instructions for defendant.

This assignment is supplemented by the brief of counsel, in which it is further claimed that the evidence was insufficient to warrant the finding of the jury. The bill of exceptions certifies not the facts proved, but the evidence.

In such cases, the rule of this Court, very often announced, is that the judgment will not be reversed, unless by rejecting all the parol evidence of the exceptor which conflicts with that of his adversary, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. Henry v. Davis, 7 W. Va. 715, and many cases since.

In my view of this case, and with the above principle applied to the evidence, the controversy resolves itself into a very narrow compass. It is not whether the plaintiff proved all the facts as set out in the statement accompanying his declaration, but whether he proved those averments of his declaration which, if proved, would entitle him to recover, after having giving notice of the same in his statement. The object of this statement prescribed by the act of 1882, chap. 77, as contained in the Code, 1887, page 791, is “to notify .the adverse party in effect of the nature of the claim or de-fence intended to be set up against him;” and if it suffices for that purpose, it can not be adjudged insufficient; see section 66, page 792, -Id.

In this case, the statement of the plaintiff notifies the defendant, that the agent of the defendant, who drew the policy, made out the same in the name of John K. Deitz, instead of in the name of Sarah E. Deitz, his wife, “by mistake

The question then is whether this mistake was sufficiently proved to sustain the verdict.

The plaintiff’s chief evidence upon this subject was given by Robert A. Coleman, an employee of the agent, N. B. Coleman, as clerk, and is as follows:

“Mr. Deitz had been talking to me and father about insuring his property. He came up and wanted to be insured. He paid money in part and give his individual note for balance. The policy was written in the Queen Insurance Company. The Queen refused to carry it and it was then written in the Providence Washington Insurance Company. Both policies weie written without consultation with Deitz or his wife. At that time I kuew the property belonged to Mrs. Deitz. I knew it because I was deputy sheriff. It was my mistake. I wrote the policy. Deitz gave his note and the note was before me when I wrote the policy, and that was the way I happened to get his name in the policy. I did not know it was written in Mr. Deitz’s name until after the fire. After Mr. Gillespie, the adjuster, came here I was sick and my father came to my room and asked me if I knew the property belonged to Mrs. Deitz, and I told him I did, and he asked me why I insured it in the name of J. K. Deitz, and I asked him if I had, and he said, ‘yes,’ and I told him I had made a mistake then. Both Deitz and his wife told me that she owned the property before the policy was written.”

There is no further evidence of the plaintiff tending to weaken this testimony, and we have seen, any conflicting testimony of the defendant must be rejected. Here, then, is a case of mere clerical misprision, on the part of a clerk who, while intending to write one name, writes a different one by mistake — by substitution of what happened to be before his eyes, for that which was in his mind — the committing to the paper not of the writer’s design, but of something different, as the result of an absent mind, or a lapsing pen.

This view of the testimony, which is obviously the correct one, and the one which the jury took, makes the question turn, not. so much on the knowledge of the clerk, as on his acts — what did he intend to write, as compared with what was actually written ? On this subject, the clerk says — -“it was my mistake — I wrote the policy — Deitz gave his note, and the note was before me when I wrote the policy, and that was the way, I happened to get Ms name in the policy” — (instead of the name of Mrs. Deitz.) No court of equity would hesitate to correct an error of the scrivener, thus clearly established, whether in a deed, or parol contract. No court of record would hesitate to correct a clerical misprision in its own records, if the mistake w.ere thus clearly established.

Blessing’s Ad’mr v. Beatty, 1 Rob. R. 287; in Alexander & Co. v. Newton &c., 2 Gratt. 266, “a mere mistake of the draftsman,” in drawing a deed was corrected; in Peyton v. Harman, 22 Gratt. 266, the words “ to be paid” having been accidentally omitted by the penman, were supplied in a court of law.

So in our own Court, it is said, in Troll &c. v. Carter &c., 15 W. Va. 567, “a court of equity will correct the mistakes of a scrivener in drawing a deedsee also Henly v. Menefee, 10 W. Va. 771.

In this very case, when before this Court, at a former term, it was held that — “parol evidence is competent to prove that the application was filled up by the agent of the company, and that the facts were fully and correctly stated to him, but that he, without the knowledge of the insured, misstated them in the application.” 31 W. Va. 853; (the word “application” should be “policy,” as will appear by looking at the statement of the case, Id. 852-53.) If the defendant company had repudiated the contract altogether, on the ground that their agent N. B. Coleman had nothing to do with making it, and had not signed the policy, the case would be different; but when the company admits the contract, and rests its defence upon the more clerical blunder of the “amanuensis” (to use the phrase of its counsel) of their agent, it stands upon a position utterly untenable, either in a court of law, or equity.

I come, finally, to consider the instructions. And first, those given for the plaiutiff, five in number. In their brief, counsel for the appellant direct their attention chiefly to the 1st instruction, and the 5th. The 1st will be found on page 7 supra. The objection urged against it is that it assumes that there was evidence tending to prove certain facts when in fact there was none, and such facts were not pretended to exist. For instance, it says that if they find that Robert, at the instance of his father, wrote out the policy in suit, signed and countersigned the same for his father in his business name, received the cash and the note for the balance and transacted the whole business, so far as the defendant was concerned, in taking and completing the insurance, etc., then the plaintiff’s right to recover is not affected.

The instruction is certainly in one or two of its hypothesis, liable to the objection urged, viz: that there was no direct evidence tending to show the particular facts supposed. Robert Coleman does not say he signed or countersigned the policy; he says “I wrote the policy” — perhaps the jury might legitimately infer that this included signature and countersignature. So in regard to receiving the cash and the note. R. A. Coleman does not say he received the money, or the note: he says — “at the time these policies were written, father was out of health and I was doing most of the work, making daily reports etc. Of the business I brought into the office, I received one half the commissions from my father.” “I'wrote the policy — the policy in the Queen and in the Prov. Wash. Ins. Co. I wrote the daily report for the case. The policy in the Queen was written about the 15th October, 1886. Deitz came in and said he wanted his property insured, and he paid part cash and gave his sixty day note for the balance. He did not say anything about being agent for his wife. Father was present all the time Deitz -was in the office.”

There would be no great violence in the inference from this evidence, that the son and not the father received the money; and that the son and clerk did, in fact, transact— according to his testimony — substantially—the whole business in taking and completing the insurance. But the material part of this instruction, and that to which the plaintiff in error most seriously objects, is the conclusion, to the fob lowing effect — that if the jury find that Robert A. Coleman, the clerk, intended to issue the policy in the name of Mrs. Sarah E. Deitz, hut by mistake on his part issued the same in the name of Mr. Deitz, then such mistake of the said Robert Coleman does not vitiate said policy, nor affect the plaintiff’s right to recover in this action.

From what has been said above, it is apparent that this is a true statement of the law, as applied to this case, and as decided when the case was here before, and, therefore, I find no error in this instruction. And these remarks apply with equal force to the fifth instruction, which will be found on page 8, supra. The defendant’s counsel objects particularly to the use of the word “agents” in this instruction, as calculated to mislead, and as an assumption that H. B. Coleman was not the only agent of the company in this transaction. The force of this objection disappears, when the fact is considered that the policy is sigued “N. B. Coleman & Co., Agents,” and the policy being before the jury, they could not be misled by language identical with that in the policy itself. Moreover, when it is established and admitted that R. A. Coleman was the clerk of the company’s agent, then, his own agency to that extent, and for the purpose of writing the policy, is conceded. Upon this subject, Mr. Wood says (See Wood on Ins., sec. 409, p. 686);

“Hot only is the insurer responsible for acts of its agents, but also for the acts of its agent’s eterks, or any persons, to whom be delegates authority to discharge his function,-for him. Of course, the act must be done by some person authorized expressly or impliedly by the agent, and under such circumstances that the insurer knew, or ought to have known, that other persons would be employed by, and to act for the agent.”

But it would seem almost superfluous to adduce authority to show that a mistake of the agent’s clerk, in transcribing a policy, is a mistake of the agent himself, as much so as if done with his own hand.

The plaintiff’s other instructions relates to the question of waiver of the proof of loss, by denial of liability, and refusal to pay. In Shephard’s Adm’r v. Peabody Ins. Co., 21 W. Va. 368, syl. 14, it was decided by this Court that “A denial by ''an insurance company of its liability, on other grounds, before any preliminary proofs are made, and before the time within which such proofs are to be made by the terms of the policy, is in law a waiver of the conditions of a policy requiring such proofs.” The instruction to which this point in the syllabus applied, and in which the court found no error, used this language, “if the defendant declined to pay the said loss, on other grounds than the failure of the plaintiff to furnish the said proofs.”

It will thus be seen that this Court does not seem to have been able, at that time, to draw the nice distinction which the adjuster of the company undertook to establish, between a refusal to pay, and a denial of liability.

No doubt the jury, very properly, considered the ingeniously worded notice which he gave, as follows:

“We don’t intend to look further into the matter, and we don’t deny our liability, nor do we admit it;” — much more creditable to his ingenuity than to his frankness or candor.

I think this notice of itself would bring the case within the rule of waiver, laid down in Shephard v. Peabody Ins. Co., above quoted, and that there was no error in granting the instructions prayed for by the plaintiff.

I come now to consider those instructions of the defendant which were refused, being those marked respectively 2, 3,12, 13, 14 and 15 (pp. 533, 536 supra).

The second instruction prayed by the defendant sets out all the facts which the plaintiff embodied in his “statement,” and instructs the jury that unless they find all these facts to be proved by the evidence, they can not find for the plaintiff. How, as I have said before, it was not necessary to prove all the circumstances detailed in the “statement” as facts, but only so much thereof as was necessary to support the declaration, and authorize a verdict.

If the clerk knew to whom the property belonged, and it was left to him to write out the policy, and he, while intending to write the name of the true owner, wrote that of her husband, by a clerical mistake, then, the plaintiff need prove nothing more in regard to ownership, to entitle him to recover. For this reason, 1 think the second instruction was properly rejected. Instruction Ho. 3, which was refused, must be read in connection with the fourth, which was granted. By comparing the two, it is manifest that the court rejected the third, because of its attempt to draw a distinction between what a man knows “in his individual capacity,” and what he knows, in some other capacity — a distinction which, if it exists, is of too refined and metaphysical a character to be readily apprehended by the average juryman. I am satisfied, (without conceding it to be a correct statement of the law) that instruction Ho. 4 embraced all that the defendant could ask upon the question of the agent’s knowledge, and his mode of acquiring it, and that there was no error in refusing the third instruction asked by defendant.

The other instructions of defendant were given, as asked, consecutively down to the 12th, and refused consecutively from the 12th to the 15th inclusive.

The 12th sets out, in hypothesis, the defence of the defendant, so far as relates to the ownership of the property, and the misdescription thereof, in the policy. It requires the jury to find for the defendant, although they should believe that the agent sent his clerkto examine the property, and said clerk there learned the correct ownership, and was intent upon so writing it in the policy, when by clerical misprision he wrote another name in liat, of what he intended to write. To have given this instruction would have withdrawn from the jury the most material facts involved in the controversy, and it was properly refused. The thirteenth instruction relates to the waiver of the proof of loss, and could not have been given without ignoring and contravening the principle laid down in Shephard v. Peabody, as above quoted, and relied upon.

Defendant’s 14th instruction is erroneous, because it limits the power of the company’s agent to such an extent as would be unfair to the public, and disastrous to the companies themselves. Insurance agents are not bound to attend to all the details of their business in person, and if they could not authorize their clerks or other assistants, to carry on the business, and renew policies, or contract in reference to them, they would frequently, in case of sickness or absence, have to close their offices altogether.

The case of Bodine v. Exchange Ins. Co., 51 N. Y. 566, (10 Am. Rep. 566) was a case exactly similar to this. The syllabus in that case is as follows :

“An insurance agent can authorize his clerk to contract for risks, to deliver policies, to collect premiums, and to take in payment thereof cash or securities, and to give credit for premiums, or to demand cash. And the act of the clerk, in all such cases, is the act of the agent, and binds the company as effectually as if done by the agent in person.” See Story on Agency, § 14.

In the opinion of the court, we find the following passage, which, in my opinion, is a correct statement of the law of this case:

“But conceding this, it is claimed, on the part of the appellant, that his son, Charles Whelp, had no authority to waive the prepayment of the premium, so as to bind the company. Charles had been the clerk and assistant of his father for three or four years. He had procured policies and renewal certificates from the company and frequently delivered them to the persons insured, waiving prepayment of the premiums. All this he did with the knowledge and assent of his father, and hence we must infer that he was authorized by his father to do it.' The agency of John Whelp was not such as to require his personal attention to ail the details of the business intrusted to him. We know, according to the ordinary course of business, that insurance-agents frequently have clerks to assist them; and that they could not transact their business if obliged to attend to all the details in person, and these clerks can bind their principals, in any of the business which they are authorized to transact. An insurance-agent can authorize his clerk to contract for risks, to deliver policies, to collect premiums, and to take payment of premiums in cash or securities, and to give credit for premiums, or to demand cash ; and the act of the clerk in all such cases is the act of the agent, and binds the company just as effectually as if it were done by the agent in person. The maxim of delegatus non potest delegare does not apply in such a case. Story on Agency, § 14.”

The 15th instruction instructs the jury to find for the defendant, in ease they find that Johu K. Deitz, on the 5th of May, 1887, swore that he owned the personal property burned, and on the 31st day of December, 1887, after the action was brought, swore that the same property belonged to his wife, and that either of said affidavits were made with intent to defraud the company.

Nothing is said in this instruction about thQ agency of John K. Deitz, though that, perhaps, would sufficiently appear from the record. However, the rights of the parties must be determined as they existed when the suit was commenced, and no affidavit of John K. Deitz made after that time could affect the rights of the owner of the property. After the company has denied its liability under the policy, they could not take advantage of the breach of any of the conditions thereof made after action commenced. No false swearing after the suit was instituted could change the rights of the parties as they stood when the writ issued. Therefore, I think there was no error in refusing this instruction.

TJpon the whole, I can find no material error in the record of which the plaintiff in error can complain, and am, therefore, of opinion that the judgment of the Circuit Court should be affirmed, and that the defendant in error should recover his costs in this Court, in this behalf expended.

AeeirMed.