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(81 W. Va. 663, 95 S. E. 811.)

Pleading action on insurance policy. 2. In an action on a policy of life insurance for damages occasioned by a breach of an agreement therein made for a loan of money by the insurer to the insured, the short declaration or count contemplated by § 61, chap. 125, Code (§ 4815), is applicable, and may be used.

- sufficiency.

3. In such case, a count charging a breach of the stipulation in general terms, and a bill of particulars itemizing the damages claimed, sufficiently state the grounds of the action.

[See 21 R. C. L. 481.]

Appeal delay in writ of inquiry. 4. Mere delay in the execution of a writ of inquiry in an action in which the issues were finally made up and tried is not available as ground of

error.

Insurance agreement to make loans. 5. An agreement in a life insurance policy to make loans on it, at a specified rate of interest payable in advance, of stipulated sums of money, upon the due assignment of the policy to the insurer as collateral security for the loans, contemplated continuance of such loans at the option of the borrower by payment of the interest thereon in advance until maturity of the policy, provided it is kept alive by payment of the premiums thereon as they become due and payable; and the borrower is entitled to a provision in the loan agreement made under the clause conferring the right of renewal by such payment of interest for such time as he keeps the policy alive within the period required for maturity.

[See 14 R. C. L. 925, 926.] - contract in separate paper.

6. Such provision may be made by the execution of a paper separate and distinct from that evidencing the loan, and if such separate paper is offered, the insured is not justified in declining the loan merely because the stipulation is not inserted in the latter instrument.

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the loan, and an opportunity to save his policy by payment after such default, and refusal to make the loan without a stipulation in the loan agreement for right of cancelation of the policy without notice is a breach of the agreement to make it.

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[See 14 R. C. L. 1009.]

refusal effect.

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objection general.

9. A general objection to evidence partially admissible is properly overruled. It should be special, going only to the inadmissible part.

[See 2 R. C. L. 91.]

- subsequent contracts.

10. On an issue as to the proper construction of the loan stipulation above mentioned, provisions of policies subsequently issued by the insurer, defining the conditions upon which it makes loans to its policyholders, are admissible as tending to prove the practicability and reasonableness of the insured's interpretation of the stipulation.

Witness-insurance agent.

11. A local agent of the insurer, whose business is the selling of its policies and collection of its premiums, may properly be allowed to testify to his personal knowledge of the loan provision of such subsequent policies, and to refresh his memory by reading the same from a manual used by insurance agents. Evidence

correspondence.

12. If, in such case, the insured conducted his negotiations for a loan under the policy through a local agent of the insurer, the correspondence between the agent and his principal is admissible evidence to prove the demand for the loan, even though the fact is established by other evidence. [See 10 R. C. L. 1147 et seq.]

ERROR to the Circuit Court for Ohio County to review a judgment in 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
Brown, Jackson, & Knight, for plain-
tiff in error:

It was error to overrule defendant's objection to the testimony of T. B. Sweeney with regard to the loan provision of policies issued in 1911.

Harrison v. Middleton, 11 Gratt. 527. Messrs. Guy R. C. Allen and J. B. Sommerville also for plaintiff in error. Mr. J. Bernard Handlan, for defendant in error:

The court below erred in excluding from evidence the letter of Thomas B. Sweeney, defendant's agent, to defendant, dated March 30th, 1911.

New England Marine Ins. Co. v. DeWolf, 8 Pick. 56; Roach v. Learned, 37 Me. 110; Zachry v. Nolan, 14 C. C. A. 253, 30 U. S. App. 244, 66 Fed. 467; Ryland v. Heney, 130 Cal. 426, 62 Pac. 616; Austin v. Long, 1 Ga. App. 258, 57 S. E. 964; Dick v. Zimmerman, 207 Ill. 636, 69 N. E. 754; Buffum v. York Mfg. Co. 175 Mass. 471, 56 N. E. 599; Munhall v. Keenan, 18 Wall. 342, 21 L. ed. 808; Snell v. Bray, 56 Wis. 156, 14 N. W. 14.

The loan clause constituted a complete agreement in itself.

Van Dyke v. Norfolk Southern R. Co. 112 Va. 835, 72 S. E. 659; 6 Pom. Eq. Jur. § 764; Creecy v. Grief, 108 Va. 320, 61 S. E. 769; Clinchfield Coal Co. v. Powers, 107 Va. 393, 59 S. E. 370; Ford v. Euker, 86 Va. 75, 9 S. E. 500; State ex rel. St. Louis v. Laclede Gaslight Co. 102 Mo. 472, 22 Am. St. Rep. 789, 14 S. W. 974, 15 S. W. 383; Chouteau v. Missouri P. R. Co. 122 Mo. 375, 22 S. W. 458, 30 S. W 299.

145 Mo. App. 115, 128 S. W. 849; Crawford v. Le Fevre, 78 W. Va. 73, 88 S. E. 1078; Equitable Life Assur. Soc. v. DeLisle, 194 Mo. App. 42, 182 S. W. 1026; Dungan v. Mutual Ben. L. Ins. Co. 46 Md. 469; Alexandria, L. & H. R. Co. v. Burke, 22 Gratt. 254; Norton v. Baxter, 4 L.R.A. 307, note; McConnell v. Hewes, 50 W. Va. 33, 40 S. E. 436; Rowland Lumber Co. v. Ross, 100 Va. 275, 40 S. E. 922; Bozeman v. Prudential Ins. Co. 130 Ky. 572, 113 S. W. 836; Ingersoll v. Coram, 127 Fed. 418; Brown v. Fales, 139 Mass. 21, 29 N. E. 211; Nims v. Vaughn, 40 Mich. 356; Keystone Lumber & Salt Mfg. Co. v. Dole, 43 Mich. 370, 5 N. W. 412; State ex rel. St. Louis v. Laclede Gaslight Co. 102 Mo. 472, 22 Am. St. Rep. 789, 14 S. W. 974, 15 S. W. 383; Choteau v. Missouri P. R. Co. 122 Mo. 375, 22 S. W. 458, 30 S. W. 299.

Defendant's refusal to make loan, except upon condition that plaintiff waive his rights by signing loan agreement, constituted a breach of contract.

Clements v. State, 51 Fla. 6, 40 So. 432; Stott v. Chicago, 205 Ill. 281, 68 N. E. 736; Rogers v. Trumble, 86 Neb. 316, 125 N. W. 600; O'Donnell v. People, 224 Ill. 218, 79 N. E. 639, 8 Ann. Cas. 123; Brownell v. Greenwich, 114 N. Y. 527, 4 L.R.A. 685, 22 N. E. 24; Colburn's Appeal, 74 Conn. 463, 92 Am. St. Rep. 231, 51 Atl. 139; Barber v. Fire & Marine Ins. Co. 16 W. Va. 658, 37 Am. Rep. 800; Jones, Pledges & Collateral Securities, 2d ed. §§ 1, 772; 31 Cyc. 786, 791, 862; First Nat. Bank v. Harkness, 42 W. Va. 156, 32 L.R.A. 408, 24 S. E. 548; Winfrey v. Strother,

An element of damage is the excess interest paid elsewhere.

New York L. Ins. Co. v. Pope, 139 Ky. 567, 68 S. W. 851; McGee v. Wineholt, 23 Wash. 748, 63 Pac. 571; Gooden v. Moses Bros. 99 Ala. 230, 13 So. 765; Thorp v. Bradley, 75 Iowa, 50, 39 N. W. 177; Luce v. Hoisington, 56 Vt. 436; Coles & Sons Co. v. Standard Lumber Co. 150 N. C. 183, 63 S. E. 736.

Losses incurred by reason of the expenditure of time and money are proper elements of damage.

Slaughter v. Denmead, 88 Va. 1022, 14 S. E. 833; Hedden v. Schneblin, 126 Mo. App. 478, 104 S. W. 887; Holt v. United Security L. Ins. & T. Co. 76 N. J. L. 585, 21 L.R.A. (N.S.) 691, 71 Atl. 301; Equitable Mortg. Co. v. Thorn, Tex. Civ. App. 26 S. W. 276; Prehn v. Royal Bank, L. R. 5 Exch. 92, 39 L. J. Exch. N. S. 41, 21 L. T. N. S. 830, 18 Week. Rep. 463; Urguhart v. M'Iver, 4 Johns. 103; Riggs v. Linsey, 7 Cranch, 500, 3 L. ed. 419; Hoch v. Braxmar, 109 App. Div. 209, 95 N. Y. Supp. 647; Western U. Teleg. Co. v. Reynolds Bros. 77 Va. 186, 46 Am. Rep. 715; Coles & Sons Co. v. Standard Lumber Co. 150 N. C. 183, 63 S. E. 736; Kelly v. Fahrney, 38 C. C. A. 103, 97 Fed. 176; Pugh v. Jackson, 154 Ky. 649, 157 S. W. 1082; Bohemian-American Workingmen's Gymnastic Asso. v. Northern Bank, 120 N. Y. Supp. 134; Holt v. United Security L. Ins. & T. Co. 76 N. J. L. 585, 21 L.R.A. (N.S.) 691, 72 Atl. 301.

(81 W. Va. 663, 95 S. E. 811.)

The company's refusal to make the loan unless the plaintiff would make the new agreement it demanded was breach of its contract, for which it is liable in damages.

a

Kern v. Zeigler, 13 W. Va. 716; Gross v. Lewis, 54 W. Va. 433, 46 S. E. 174; Chapman v. J. W. Beltz & Sons Co. 48 W. Va. 2, 35 S. E. 1013; Davis v. Grand Rapids School-Furniture Co. 41 W. Va. 717, 24 S. E. 630; Pancake v. George Campbell Co. 44 W. Va. 82, 28 S. E. 719; Slaughter v. Denmead, 88 Va. 1019, 14 S. E. 833; Western U. Teleg. Co. v. Reynolds Bros. 77 Va. 173, 46 Am. Rep. 715; Holt v. United Security L. Ins. & T. Co. 76 N. J. L. 585, 21 L.R.A. (N.S.) 691, 72 Atl. 301; Prehn v. Royal Bank, L. R. 5 Exch. 92, 39 L. J. Exch. N. S. 41, 21 L. T. N. S. 830, 18 Week. Rep. 463; Urquhart v. M'Iver, 4 Johns. 103; Riggs v. Linsey, 7 Cranch, 500, 3 L. ed. 419; Hoch v. Braxmar, 109 App. Div. 209, 95 N. Y. Supp. 647.

Poffenbarger, P., delivered the opinion of the court:

The judgment complained of on this writ of error is for damages for alleged breaches of agreements in three life insurance policies to make loans to the insured and holder of the policies; the elements or factors in the recovery being the difference between the rate of interest agreed upon in the policies, 5 per cent, and the rate the borrower had to pay on loans procured else where, 6 per cent, compensation for the use of collateral securities on which such loans were secured, and remuneration for the borrower's time and services in obtaining the loans. The three policies conferred right to loans amounting in the aggregate to $17,680; $3,990 on one, $6,140 on another, and $7,550 on the third. The loss in interest was estimated at $562.23, in the testimony, and $500 was claimed on each of the other two items of the bill of particulars. The jury assessed the damages at $1,562.23, and judgment was rendered on the verdict.

A question of practice raised by an assignment of error, based on the overruling of a demurrer to the declaration, is whether a demand of

this kind can be asserted upon a declaration in the form contemplated for actions on policies of insurance by § 61 of chapter 125 of the Code (8 4815). The argument against the use of the statutory form invokes the rule of strict construction, because the statute is derogatory of the common law, and that rule applies to remedial legislation. Bank of Weston v. Thomas, 75 W. Va. 321, 83 S. E. 985. However, it does not forbid allowance of operation of a statutory provision to the full extent of its terms when it applies, unless the intention to limit it to a narrower function is disclosed in some way. Sections 61 to 66 of chapter 125 of the Code (§§ 4815-4820) constituted chapter 66 of the Acts of 1877, entitled, "An Act to Regulate Pleadings in Actions on Policies of Insurance." provides provides that "a declaration or count on a policy of insurance, whether the policy be under seal or not, may be in effect" as prescribed.

It

Intent to limit it to fire and life policies is clearly negatived in the form prescribed by this direction: "Here insert the cause of loss in general terms; for example: By fire, by damages of navigation, or otherwise, according to the fact."

In so far as it relates specially to declarations on life policies, it mentions only actions for death claims. A literal adherence to it would not limit the act to actions for indemnities for loss of property or injury thereto and death claims. The first part of it contemplates "loss in respect to the property [or subject] insured" by the policy sued on. This is general, and seems to have been intended for use in all actions on all policies of insurance except in particular instances, actions for death claims under life policies, covered and specially 'dealt with in the second part of the form. The death claim seems not to have been regarded as indemnity for a loss, wherefore it is distinguished from other causes of action arising out of insurance policies and described as a right of action occasioned or

only upon a live and subsisting
policy. Union Cent. L. Ins. Co. v.
Buxer, 62 Ohio St. 385, 49 L.R.A.
737, 57 N. E. 66; 14 R. C. L. p. 942.
The breach of any condition or cov-
enant of the policy vital to its life
or efficiency would justify refusal
of a loan and afford ground of de-
fense to an action for breach of the
undertaking. For these reasons we
are of the opinion that the statutory

method of pleading Pleading-
may properly be action on
followed in the as-
sertion of demands

called into being by the death of the
insured. The first part of the form
contemplates actions for losses in
respect to subjects of insurance oth-
er than property, such as health and
earning capacity, susceptible of loss
or impairment by sickness or cas-
ualty. Indemnity against such losses
may be provided by policies. In
other words, a policy may combine
life, accident, and health insurance,
and, if the action on such a policy
is one for indemnity, the declara-
tion or count would not follow the
latter part of the form. The cause
of action would be within both the
purpose and letter of the general
form. A stipulation in a policy
binding the insurer to loan the in-
sured money is clearly a provision
of the policy, though it may not be
an insurance in the strict sense of
the term, and a breach thereof gives
a right of action on the policy. The
statute makes the policy a part of
the declaration. Staats v. Georgia
Staats v. Georgia
Home Ins. Co. 57 W. Va. 571, 50 S.
E. 815, 4 Ann. Cas. 541. Its pro-
visions are substituted for the com-
mon-law allegations of right of re-
covery as to everything except
averment of the breach of some
particular promise or agreement
shown by the policy itself, filed as
part of the declaration, and giving
the right of action. The causes of
action specified in the form pre-
scribed are those most frequently
asserted, and they were obviously
used by way of illustration. The
title of the act is general, going to
all actions on policies of insurance,
and § 1 provides that a declaration
or count on such a policy may be in
effect what the form indicates, and
the indication is general and com-
prehensive. The validity and en-
forceability of the stipulation in-
volved here are dependent upon
compliance with all vital conditions
and covenants of the policy, just as
any other obligation imposed by it
is; wherefore this clause and the ac-
tion predicated on the breach there-
of are clearly within the reason and
purpose of the enactment of the
statute. A loan can be demanded

insurance
policy.

of this class. The other criticisms of the counts on the policies-lack of allegation of the promises sued on, averment of the promises upon which the action is based, breaches of the contracts, and assignments of the policies or offers to assign them-would take the case entirely out of the statute if sustained. They amount to no more than specific invocations of common-law rules of pleading, with the observance of which the statute dispenses. Refusal of the defendant to make the loans it agreed to make is averred, and the statute requires nothing more, except the filing of the policies or copies thereof with the declaration.

The defendant's demand for a more particular statement of the nature of the plaintiff's demand was properly overruled.

From the policies -sufficiency.

filed with the declaration and the allegation of refusal to make loans, the defendant had full knowledge of everything it was required to meet, except the items constituting the aggregate of the damages claimed, and they were supplied by the bill of particulars. The assignment of error based on this ruling seems to have been abandoned.

Refusal of the court to execute the writ of inquiry upon the demand of the plaintiff after considerable delay occasioned by consideration of the demurrer and demands by both parties for specifications of the cause of action and grounds of

(81 W. Va. 663, 95 S. E. 811.)

defense respectively is not avail

Appeal-delay in writ of inquiry.

able as matter of error. Until actual entry of judgment the right of defense existed without disclosure of an excuse for delay (Citizens' Trust & G. Co. v. Young, 75 W. Va. 241, 83 S. E. 1007), and none had been entered at the date of the demand for entry thereof. For mere delay in procedure, if undue and unreasonable, there was no doubt a remedy that could have been invoked at the time.

The clause in each of the policies upon which the action is founded reads as follows: "After this policy has been in force three years the society will make loans thereon at 5 per cent interest per annum, payable in advance, of the respective amounts stated in the following table upon the due assignment of this policy to the society as collateral security for such loan."

When the plaintiff applied for loans under it the defendant submitted to him a form of agreement binding him to repay the loans on the dates on which the premiums should become payable, and then providing as follows: "In consideration of said loan the party of the second part hereby assigns, transfers, and sets over all his right, title, and interest, including the right to exercise any and all options and privileges in policy No. 1,036,147 on the life of Charles N. Brady issued by said party of the first part, together with all money which may be payable under the same to said party of the first part as collateral security for the repayment of said loan. In the event of default, in the repayment of said loan upon the date herein above mentioned, the party of the first part is hereby fully authorized and empowered, without notice to and without demand for payment by the party of the second part, to cancel said policy and to apply the cash surrender value of such cancelation to the payment of said loan and any unpaid interest; and upon the maturity of said policy, either by death or lapse

of time, the party of the first part is hereby authorized and empowered to exercise any right or option and accept and extend any privilege or other benefit held, possessed, or enjoyed by the party of the second part, under the terms and conditions of said policy, including the right to commute any amount due in instalments, whether provided for in the policy contract or not. Should the surrender value of said policy exceed the amount of above loan, with interest at 5 per cent thereon, then, and in that case, the excess value above the loan and interest shall be due and payable to the legal owner or owners of the policy on demand."

Declining to sign it in this form, the plaintiff made three interlineations therein, one providing for extension of the loan by payment of interest in advance for one year, another for thirty days' notice of intention to cancel the policy for default of payment of the loan on the due date thereof, and the third for waiver of further demand of payment. ment. The defendant expressed its intention and determination in correspondence not to alter its form in any respect. Thereupon the plaintiff borrowed the money from other parties, using as collateral certificates of stock in corporations owned by him.

That the loan provision bound the defendant to make renewable or successive loans to the extent of the specified loan values after the policy had been in force for three years until the maturity thereof, provided the policy was kept alive by the payment of premiums and performance of conditions and covenants necessary to its continu

Insurance

make loans.

ance in force, if agreement to any, and payment of interest in advance, from year to year, does not seem to be disputed. In the correspondence there is a protestation protestation against purpose the part of the defendant to deny this right in the policyholder, but his claim of right to notice of cancelation is flatly denied. A letter

on

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