(81 W. Va. 663, 95 $. E. 811.) Pleading - action on insurance policy. the loan, and an opportunity to save 2. In an action on a policy of life his policy by payment after such deinsurance for damages occasioned by a fault, and refusal to make the loan breach of an agreement therein made without a stipulation in the loan agreefor a loan of money by the insurer to ment for right of cancelation of the the insured, the short declaration or policy without notice is a breach of count contemplated by $ 61, chap. 125, the agreement to make it. Code ($ 4815), is applicable, and may [See 14 R. C. L. 1009.] be used. - refusal effect. - sufficiency. 8. Emphatic refusal of the insurer, in 3. In such case, a count charging a such case, to make the loan stipulated breach of the stipulation in general for, otherwise than upon an agreement terms, and a bill of particulars item- waiving notice of intention to cancel izing the damages claimed, sufficiently the policy for default in payment of state the grounds of the action. the loan, excuses the insured from fur[See 21 R. C. L. 481.] ther efforts to obtain it, and his appliAppeal – delay in writ of inquiry. cation for it, under an agreement pro 4. Mere delay in the execution of a viding for such notice, is sufficient writ of inquiry in an action in which proof of his readiness and willingness the issues were finally made up and to accept it. tried is not available as ground of Evidence – objection — general. error. 9. A general objection to evidence Insurance agreement to make loans. partially admissible is properly over 5. An agreement in a life insurance ruled. It should be special, going onpolicy to make loans on it, at a specified ly to the inadmissible part. rate of interest payable in advance, of [See 2 R. C. L. 91.] stipulated sums of money, upon the due subsequent contracts. assignment of the policy to the insurer 10. On an issue as to the proper conas collateral security for the loans, con- struction of the loan stipulation above templated continuance of such loans at mentioned, provisions of policies subthe option of the borrower by payment sequently issued by the insurer, deof the interest thereon in advance un- fining the conditions upon which it til maturity of the policy, provided it makes loans to its policyholders, are is kept alive by payment of the pre- admissible as tending to prove the pracmiums thereon as they become due and ticability and reasonableness of the payable; and the borrower is entitled insured's interpretation of the stipulato a provision in the loan agreement tion. made under the clause conferring the Witness insurance agent. right of renewal by such payment of 11. A local agent of the insurer, interest for such time as he keeps the whose business is the selling of its polipolicy alive within the period required cies and collection of its premiums, for maturity. [See 14 R. C. L. 925, 926.] may properly be allowed to testify to his personal knowledge of the loan pro- contract in separate paper. vision of such subsequent policies, and 6. Such provision may be made by to refresh his memory by reading the the execution of a paper separate and same from a manual used by insurance distinct from that evidencing the loan, agents. and if such separate paper is offered, Evidence - correspondence. the insured is not justified in declin 12. If, in such case, the insured coning the loan merely because the stipu ducted his negotiations for a loan unlation is not inserted in the latter in der the policy through a local agent of strument. the insurer, the correspondence be- intention to cancel notice. tween the agent and his principal is 7. Under such a provision in the admissible evidence to prove the depolicy, the insured is entitled to rea- mand for the loan, even though the sonable notice of intention to cancel fact is established by other evidence. the policy for default in payment of [See 10 R. C. L. 1147 et seq.] ERROR to the Circuit Court for Ohio County to review a judgment favor of plaintiff in an action brought to recover damages for alleged breaches of agreements in certain life insurance policies to make loans to him. Reversed. The facts are stated in the opinion of the court. Messrs. Alexander & Green and 145 Mo. App. 115, 128 S. W. 849; CrawBrown, Jackson, & Knight, for plain- ford v. Le Fevre, 78 W. Va. 73, 88 S. E. tiff in error: 1078; Equitable Life Assur. Soc. v. It was error to overrule defendant's DeLisle, 194 Mo. App. 42, 182 S. W. objection to the testimony of T. B. 1026; Dungan v. Mutual Ben. L. Ins. Sweeney with regard to the loan pro Co. 46 Md. 469; Alexandria, L. & H. R. vision of policies issued in 1911. Co. v. Burke, 22 Gratt. 254; Norton v. Harrison v. Middleton, 11 Gratt. 527. Baxter, 4 L.R.A. 307, note; McConnell Messrs. Guy R. C. Allen and J. B. v. Hewes, 50 W. Va. 33, 40 S. E. 436; Sommerville also for plaintiff in error. Rowland Lumber Co. v. Ross, 100 Va. Mr. J. Bernard Handlan, for defend- 275, 40 S. E. 922; Bozeman v. Prudenant in error: tial Ins. Co. 130 Ky. 572, 113 S. W. 836; The court below erred in excluding Ingersoll V. Coram, 127 Fed. 418; from evidence the letter of Thomas B. Brown v. Fales, 139 Mass. 21, 29 N. Sweeney, defendant's agent, to defend- E. 211; Nims v. Vaughn, 40 Mich. 356; ant, dated March 30th, 1911. Keystone Lumber & Salt Mfg. Co. v. New England Marine Ins. Co. v. Dole, 43 Mich. 370, 5 N. W. 412; State De Wolf, 8 Pick. 56; Roach v. Learned, ex rel. St. Louis v. Laclede Gaslight 37 Me. 110; Zachry v. Nolan, 14 C. C. Co. 102 Mo. 472, 22 Am. St. Rep. 789, A. 253, 30 U. S. App. 244, 66 Fed. 467; 14 S. W. 974, 15 S. W. 383; Choteau v. Ryland v. Heney, 130 Cal. 426, 62 Pac. Missouri P. R. Co. 122 Mo. 375, 22 S. 616; Austin v. Long, 1 Ga. App. 258, W. 458, 30 S. W. 299. 57 S. E. 964; Dick v. Zimmerman, 207 An element of damage is the excess Ill. 636, 69 N. E. 754; Buffum v. York interest paid elsewhere. Mfg. Co. 175 Mass. 471, 56 N. E. 599; New York L. Ins. Co. v. Pope, 139 Munhall v. Keenan, 18 Wall. 342, 21 Ky. 567, 68 S. W. 851; McGee v. WineL. ed. 808; Snell v. Bray, 56 Wis. 156, holt, 23 Wash. 748, 63 Pac. 571; Gooden . 14 N. W. 14. v. Moses Bros. 99 Ala. 230, 13 So. 765; The loan clause constituted a com- Thorp v. Bradley, 75 Iowa, 50, 39 N. plete agreement in itself. W. 177; Luce v. Hoisington, 56 Vt. Van Dyke v. Norfolk Southern R. Co. 436; Coles & Sons Co. v. Standard Lum112 Va. 835, 72 S. E. 659; 6 Pom. Eq. ber Co. 150 N. C. 183, 63 S. E. 736. Jur. § 764; Creecy v. Grief, 108 Va. Losses incurred by reason of the ex320, 61 S. E. 769; Clinchfield Coal Co. penditure of time and money are propv. Powers, 107 Va. 393, 59 S. E. 370; er elements of damage. Ford v. Euker, 86 Va. 75, 9 S. E. 500; Slaughter v. Denmead, 88 Va. 1022, State ex rel. St. Louis v. Laclede Gas- 14 S. E. 833; Hedden v. Schneblin, 126 light Co. 102 Mo. 472, 22 Am. St. Rep. Mo. App. 478, 104 S. W. 887; Holt v. 789, 14 S. W. 974, 15 S. W. 383; Chou- United Security L. Ins. & T. Co. 76 N. teau v. Missouri P. R. Co. 122 Mo. 375, J. L. 585, 21 L.R.A.(N.S.) 691, 71 Atl. 22 S. W. 458, 30 S. W 299. 301; Equitable Mortg. Co. v. Thorn, Defendant's refusal to make loan, Tex. Civ. App. —, 26 S. W. 276; Prehn except upon condition that plaintiff v. Royal Bank, L. R. 5 Exch. 92, 39 waive his rights by signing loan agree- L. J. Exch. N. S. 41, 21 L. T. N. S. ment, constituted a breach of contract. 830, 18 Week. Rep. 463; Urguhart v. Clements v. State, 51 Fla, 6, 40 So. M'Iver, 4 Johns. 103; Riggs v. Linsey, 432; Stott v. Chicago, 205 Ill. 281, 68 ī Cranch, 500, 3 L. ed. 419; Hoch v. N. E. 736; Rogers v. Trumble, 86 Neb. Braxmar, 109 App. Div. 209, 95 N. Y. 316, 125 N. W. 600; O'Donnell v. Peo- Supp. 647; Western U. Teleg. Co. v. ple, 224 Ill. 218, 79 N. E. 639, 8 Ann. Reynolds Bros. 77 Va. 186, 46 Am. Rep. Cas. 123; Brownell v. Greenwich, 114 715; Coles & Sons Co. v. Standard N. Y. 527, 4 L.R.A. 685, 22 N. E. 24; Lumber Co. 150 N. C. 183, 63 S. E. 736; Colburn's Appeal, 74 Conn. 463, 92 Kelly v. Fahrney, 38 C. C. A. 103, 97 Am. St. Rep. 231, 51 Atl. 139; Barber Fed. 176; Pugh v. Jackson, 154 Ky. v. Fire & Marine Ins. Co. 16 W. Va. 649, 157 S. W. 1082; Bohemian-Am658, 37 Am. Rep. 800; Jones, Pledges erican Workingmen's Gymnastic Asso. & Collateral Securities, 2d ed. $$ 1, 772; v. Northern Bank, 120 N. Y. pp. 134; 31 Cyc. 786, 791, 862; First Nat. Bank Holt v. United Security L. Ins. & T. v. Harkness, 42 W. Va. 156, 32 L.R.A. Co. 76 N. J. L. 585, 21 L.R.A.(N.S.) 408, 24 S. E. 548; Winfrey v. Strother, 691, 72 Atl. 301. a (81 W. Va. 663, 95 8. E. 811.) The company's refusal to make the this kind can be asserted upon a loan unless the plaintiff would make the declaration in the form contemplatnew agreement it demanded was ed for actions on policies of insurbreach of its contract, for which it is ance by $ 61 of chapter 125 of the liable in damages. Code ($ 4815). The argument Kern v. Zeigler, 13 W. Va. 716; Gross v. Lewis, 54 W. Va. 433, 46 S. E. 174; against the use of the statutory Chapman v. J. W. Beltz & Sons Co. 48 form invokes the rule of strict conW. Va. 2, 35 S. E. 1013; Davis v. struction, because the statute is deGrand Rapids School-Furniture Co. 41 rogatory of the common law, and W. Va. 717, 24 S. E. 630; Pancake v. that rule applies to remedial legisGeorge Campbell Co. 44 W. Va. 82, 28 lation. Bank of Weston v. Thomas, S. E. 719; Slaughter v. Denmead, 88 75 W. Va. 321, 83 S. E. 985. HowVa. 1019, 14 S. E. 833; Western U. Teleg. Co. v. Reynolds Bros. 77 Va, 173, operation of a statutory provision ever, it does not forbid allowance of 46 Am. Rep. 715; Holt v. United Se to the full extent of its terms when curity L. Ins. & T. Co. 76 N. J. L. 585, 21 L.R.A.(N.S.) 691, 72 Atl. 301; it applies, unless the intention to Prehn v. Royal Bank, L. R. 5 Exch. 92, limit it to a narrower function is 39 L. J. Exch. N. S. 41, 21 L. T. N. S. disclosed in some way. Sections 61 830, 18 Week. Rep. 463; Urquhart v. to 66 of chapter 125 of the Code (88 M'Iver, 4 Johns. 103; Riggs v. Linsey, 4815-4820) constituted chapter 66 7 Cranch, 500, 3 L. ed. 419; Hoch v. of the Acts of 1877, entitled, "An Braxmar, 109 App. Div. 209, 95 N. Y. Act to Regulate Pleadings in ACSupp. 647. tions on Policies of Insurance.” It Poffenbarger, P., delivered the provides that "a declaration or opinion of the court: count on a policy of insurance, The judgment complained of on whether the policy be under seal or this writ of error is for damages not, may be in effect” as prescribed. for alleged breaches of agreements Intent to limit it to fire and life in three life insurance policies to policies is clearly negatived in the make loans to the insured and hold form prescribed by this direction: er of the policies; the elements or "Here insert the cause of loss in factors in the recovery being the general terms; for example: By difference between the rate of inter- fire, by damages of navigation, or est agreed upon in the policies, 5 otherwise, according to the fact." per cent, and the rate the borrower In so far as it relates specially to ad to pay on loans procured else- declarations on life policies, it menwhere, 6 per cent, compensation for tions only actions for death claims. the use of collateral securities on A literal adherence to it would not which such loans were secured, and limit the act to actions for indemremuneration for the borrower's nities for loss of property or injury time and services in obtaining the thereto and death claims. The first loans. The three policies conferred part of it contemplates “loss in reright to loans amounting in the ag- spect to the property (or subject] gregate to $17,680; $3,990 on one, insured” by the policy sued on. This $6,140 on another, and $7,550 on is general, and seems to have been the third. The loss in interest was intended for use in all actions on all estimated at $562.23, in the testi- policies of insurance except in parmony, and $500 was claimed on ticular instances, actions for death each of the other two items of the claims under life policies, covered bill of particulars. The jury assess- and specially dealt with in the seced the damages at $1,562.23, and ond part of the form. The death judgment was rendered on the ver- claim seems not to have been redict. garded as indemnity for a loss, A question of practice raised by wherefore it is distinguished from an assignment of error, based on other causes of action arising out the overruling of a demurrer to the of insurance policies and described declaration, is whether a demand of as a right of action occasioned or Pleading- called into being by the death of the only upon a live and subsisting policy. latter part of the form. The cause sertion of demands of action would be within both the of this class. The other criticisms purpose and letter of the general of the counts on the policies—lack form. A stipulation in a policy of allegation of the promises sued binding the insurer to loan the in- on, averment of the promises upon sured money is clearly a provision which the action is based, breaches of the policy, though it may not be of the contracts, and assignments an insurance in the strict sense of of the policies or offers to assign the term, and a breach thereof gives them—would take the case entirely a right of action on the policy. The out of the statute if sustained. statute makes the policy a part of They amount to no more than spethe declaration. Staats v. Georgia cific invocations of common-law Home Ins. Co. 57 W. Va. 571, 50 S. rules of pleading, with the observ. E. 815, 4 Ann. Cas. 541. Its pro- ance of which the statute dispenses. visions are substituted for the com- Refusal of the defendant to make the mon-law allegations of right of re- loans it agreed to make is averred, covery as to everything except and the statute requires nothing averment of the breach of some more, except the filing of the poliparticular promise or agreement cies or copies thereof with the decshown by the policy itself, filed as laration. part of the declaration, and giving The defendant's demand for a the right of action. The causes of more particular statement of the action specified in the form pre- nature of the plaintiff's demand was scribed are those most frequently properly overruled. asserted, and they were obviously From the policies -suffciency. used by way of illustration. The filed with the declaration and the title of the act is general, going to all actions on policies of insurance, allegation of refusal to make loans, the defendant had full knowledge and § 1 provides that a declaration or count on such a policy may be in of everything it was required to effect what the form indicates, and meet, except the items constituting the indication is general and com the aggregate of the damages prehensive. The validity and en claimed, and they were supplied by forceability of the stipulation in the bill of particulars. The assignvolved here are dependent upon ment of error based on this ruling compliance with all vital conditions seems to have been abandoned. and covenants of the policy, just as Refusal of the court to execute any other obligation imposed by it the writ of inquiry upon the deis; wherefore this clause and the ac mand of the plaintiff after considertion predicated on the breach there- able delay occasioned by considerof are clearly within the reason and ation of the demurrer and demands purpose of the enactment of the by both parties for specifications of statute. A loan can be demanded the cause of action and grounds of (81 W. Va. 663, 95 S. E. 811.) defense respectively is not avail- of time, the party of the first part able as matter of is hereby authorized and empowAppeal-delay in writ of error. Until actual ered to exercise any right or option Inquiry. entry of judgment and accept and extend any privilege the right of defense existed without or other benefit held, possessed, or disclosure of an excuse for delay enjoyed by the party of the second (Citizens' Trust & G. Co. v. Young, part, under the terms and condi , 75 W. Va. 241, 83 S. E. 1007), and tions of said policy, including the none had been entered at the date right to commute any amount due of the demand for entry thereof. in instalments, whether provided For mere delay in procedure, if un- for in the policy contract or not. due and unreasonable, there was no Should the surrender value of said doubt a remedy that could have policy exceed the amount of above been invoked at the time. loan, with interest at 5 per cent The clause in each of the policies thereon, then, and in that case, the upon which the action is founded excess value above the loan and inreads as follows: "After this pol- terest shall be due and payable to icy has been in force three years the the legal owner or owners of the society will make loans thereon at 5 policy on demand.” per cent interest per annum, pay Declining to sign it in this form, able in advance, of the respective the plaintiff made three interlineaamounts stated in the following tions therein, one providing for extable upon the due assignment of tension of the loan by payment of this policy to the society as collat- interest in advance for one year, eral security for such loan." another for thirty days' notice of When the plaintiff applied for intention to cancel the policy for deloans under it the defendant sub- fault of payment of the loan on the mitted to him a form of agreement due date thereof, and the third for binding him to repay the loans on waiver of further demand of paythe dates on which the premiums ment. The defendant expressed its should become payable, and then intention and determination in corproviding as follows: "In consid- respondence not to alter its form eration of said loan the party of the in any respect. Thereupon the plainsecond part hereby assigns, trans- tiff borrowed the money from other fers, and sets over all his right, parties, using as collateral certifititle, and interest, including the cates of stock in corporations owned right to exercise any and all options by him. and privileges in policy No. 1,036,- That the loan provision bound the 147 on the life of Charles N. Brady defendant to make renewable or issued by said party of the first successive loans to the extent of the part, together with all money which specified loan values after the policy may be payable under the same to had been in force for three years said party of the first part as collat- until the maturity, thereof, provided eral security for the repayment of the policy was kept alive by the paysaid loan. In the event of default, ment of premiums and performance in the repayment of said loan upon of conditions and covenants necesthe date hereinabove mentioned, sary to its continu Insurancethe party of the first part is hereby ance in force, if agreement to fully authorized and empowered, any, and payment without notice to and without de- of interest in advance, from year to mand for payment by the party of year, does not seem to be disputed. the second part, to cancel said policy In the correspondence there is a and to apply the cash surrender protestation against purpose on value of such cancelation to the pay- the part of the defendant to deny ment of said loan and any unpaid this right in the policyholder, but interest; and upon the maturity of his claim of right to notice of cansaid policy, either by death or lapse celation is flatly denied. A letter make loans. |
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