Muhleman v. National Insurance Co.

Citations

• 6 W. Va. 508

Syllabus

<p>Syllabus.</p> <p>1. The practice of inserting in a demurrer to evidence the evidence on both sides, is proper and well established by the authorities.</p> <p>1. “In such case, the demurrant must be considered as admitting all that can reasonably be inferred by a jury, from the evidence given by the other party; and as waiving all the evidence on his part which contradicts that offered by the other party, or the credit of which is impeached; and all inferences from Ms own evidence, ■which do not necessarily flow from it.”</p> <p>3. The policy of insurance recites that, “Tho Company, having been paid, as consideration for this insurance, Charles Muhleman’s note for $400, at 9 months — the nine-sixteenths interest of said boat is hereby insured, being valued at $18,000.” Charles Muhleman, in fact, did not execute his note, but a few days after the date of the policy, and at the delivery thereof to him at the office of the insurer by its clerk, Charles Muhleman, who was the captain of said boat, made and delivered to the clerk of the insurer, for the premium of insurance, the note of tho “Steamer Potomac and Owners,” and signed “Steamer Potomac and Owners,” per Charles Muhleman, Captain,” and in lieu of giving his own note, and the same was accepted and received by the clerk for the premium of insurance in lieu of Charles Muhleman’s note. Held,</p> <p>That it was competent for tho insurer, by its clerk, to receive and accept the said note for the premium, in lieu of the note of Charles Muhleman, and that by so accepting it, the insurer waived the note of Charles Muhleman, and should be thereby estopped from claiming any advantage in an action on the policy, from the fact that Muhleman did not make and deliver his note as recited in the policy. Held also,</p> <p>That it is competent to prove such waiver by parol.</p> <p>4. An insurance company acts and speaks by its officers, and what tho officers say and do, when in discharge of their duty as officers, and in relatio