Slater v. Williamsburg City Fire Ins.

West Virginia Supreme Court

Slater v. Williamsburg City Fire Ins.

71 S.E. 197, 68 W. Va. 779, 1910 W. Va. LEXIS 154

CourtWest Virginia Supreme Court

DecidedOctober 18, 1910

StatusPublished

Cited by5 cases

This text of 71 S.E. 197 (Slater v. Williamsburg City Fire Ins.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Slater v. Williamsburg City Fire Ins., 71 S.E. 197, 68 W. Va. 779, 1910 W. Va. LEXIS 154 (W. Va. 1910).

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Opinions

POEEENBARGER, JUDGE :

In an action, upon a fire insurance policy, against the Wil-liamsburg City Fire Insurance Company, D. F. Slater recovered a judgment for $1,000.00, in the circuit court of Mingo county. The defendant relied chiefly upon failure of the plaintiff to furbish a proof of loss. None was furnished within the time specified in the policy, nor at any time before the action was commenced. Denial of liability, on other grounds, by an adjuster, is relied upon by the plaintiff as a waiver of fulfillment [780]*780of this condition. There was a demurrer to the plaintiffs evh dence and a conditional verdict, on which the court rendered judgment, after overruling the demurrer.

If the adjuster had no power or authority to waive this condition of the policy and it was not waived, no right of action had accrued, for performance thereof was made a condition precedent to a right of action, by the terms of the policy. There is no evidence or claim of waiver by any other representative of the company, nor by the company otherwise than by the acts and conduct of the adjuster. Under the policy sued on, no agent could waive any of its promissory warranties. It is a standard policy, containing a clause limiting the authority of the officers and agents of the company, such as that found in the policy sued on in Morris v. Duchess Ins. Co., 68 S. E. 22, in which it was held that an adjuster, 'without special authority so to do, cannot waive performance of this condition of the policy by denial of the company’s liability or otherwise. See also Cooley’s Briefs L. Ins., Yol. 3, p. 2497. This conclusion renders it unnecessary to inquire whether the conduct, of the adjuster would have constituted a waiver, if he had had authority to waive conditions.

As no right of action on the policy has accrued, there is no occasion to consider the other defenses and controversies,- disclosed by the record.

It results from these conclusions, that the judgment must be reversed, the demurrer to the evidence sustained and judgment rendered for the defendant.

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POEEENBARGER, JUDGE :

In an action, upon a fire insurance policy, against the Wil-liamsburg City Fire Insurance Company, D. F. Slater recovered a judgment for $1,000.00, in the circuit court of Mingo county. The defendant relied chiefly upon failure of the plaintiff to furbish a proof of loss. None was furnished within the time specified in the policy, nor at any time before the action was commenced. Denial of liability, on other grounds, by an adjuster, is relied upon by the plaintiff as a waiver of fulfillment [780]*780of this condition. There was a demurrer to the plaintiffs evh dence and a conditional verdict, on which the court rendered judgment, after overruling the demurrer.

If the adjuster had no power or authority to waive this condition of the policy and it was not waived, no right of action had accrued, for performance thereof was made a condition precedent to a right of action, by the terms of the policy. There is no evidence or claim of waiver by any other representative of the company, nor by the company otherwise than by the acts and conduct of the adjuster. Under the policy sued on, no agent could waive any of its promissory warranties. It is a standard policy, containing a clause limiting the authority of the officers and agents of the company, such as that found in the policy sued on in Morris v. Duchess Ins. Co., 68 S. E. 22, in which it was held that an adjuster, 'without special authority so to do, cannot waive performance of this condition of the policy by denial of the company’s liability or otherwise. See also Cooley’s Briefs L. Ins., Yol. 3, p. 2497. This conclusion renders it unnecessary to inquire whether the conduct, of the adjuster would have constituted a waiver, if he had had authority to waive conditions.

As no right of action on the policy has accrued, there is no occasion to consider the other defenses and controversies,- disclosed by the record.

It results from these conclusions, that the judgment must be reversed, the demurrer to the evidence sustained and judgment rendered for the defendant.

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71 S.E. 197, 68 W. Va. 779, 1910 W. Va. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slater-v-williamsburg-city-fire-ins-wva-1910.

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