The Sunday telegram. [volume] (Clarksburg, W. Va.) 1914-1927, 1916-03-19
One of Which Has Fourteen
Separate Legal Questions
Thrashed Out by Mason.

III tH6 opinion IN the case OF Bona
against the National Fire Insurance
Company. appeared from tho circuit
court OF Tucker county and revised.
The opinion was written by Judge
John W. Mason,
Among the questions Involved IL
that OF the refusal OF the trial court
to permit the jury to view the
grounds where the cause Of action
artHeE. the consolidation OF suits as
a matter addressed to the dIscre-
ton OF the court, special replication
OF the plaintiff suing ON a tire lnAur-
ance policy. the powers and duties Of
an insurance adjuster. the waiver Of
promtssory covenants in an insur-
ance policy, and Instructions to a
jury in the absence OF evidence on
which Instructions are based.
The syllabus opinion in this case.
ono Of eight handed down by the
court Ia hB follows:
II. The conclusion OF suits, In
law and equity alike, Is a matter adj
dressed to the sound discretion Of the
court. defendant Is not entitled,
as matter of right, to have such suit
consolidated.
e. The allowance of view by a
jury Is peculiarly within the discretion
OF the trial court, and its refusal will
not be ground of reversal, unless Il Is
clearly manifest that a view was
necessary TO just verdict, and that
Its refusal operated to the injury to
the party asking IL
%. A special replication Of plain
tiff suing upon policy of fire in
surance stating that notice OF the fire
was given to the insurance company.
and that the company proceeded to
and did adjust the loss with the
plaintiff. whereby 1t agreed to pay the
sum OF - in discharge OF It's OBJ
legation under the terms OF the policy,
which sum the plaintiff agreed to
accept In satisfaction Of the liability.
Is defective, as 1t constitutes m adjust
ment Of the loss as promise or agree
mont to pay the loss. An ascertain
ment OF the loss does not necessarily
import a promise TO pay 1t.
4. An ad1uster is a special agent
for the person or company for whom
he nets. His power and authority are
LprIma facle co-extensIve with the
business intrlIsted to his care.
20. An insurance ad1uster Is ordln-
arily a special agent Of limited auth
urity to ascertain and adjust. the loss.
having no power merely as such in
the absence OF some evidence as to his
authority to alter the contract, or
waive any of its essential conditions.
IS. An adjustment OF the amount
'of the loss, and an agreement to pay
the amount as adjusted, are two dis
tinct and separate things.
~. A mere adjustment OF loss.
unless such adjustment Is accepted ny
the insurance company with prom
Use to pay. will not estop the insurer
from denying his liability. 1t is a
mere step to ascertain and fix the
amount Of the loss. The adjustment
does not fix the liability In and OF
itself without promise OF payment
"S. The waiver by the insurer OF
one OF the nromissory covenants Of
the policy Of insurance does not waive
other conditions OF the policy. unless
1t clearly apnear that such was the
intention of the parties.
40. Although an instruction cor
rectly states the law. yet II not APP
plicable to the facts and circumstances
OF the case II tends to mIslead the
jury and should not be given.
40. An instruction shonld not be
given where there is no evidence tend
ing to prove the facts upon which the
instruction Is based.
I'll. AS a general rule the com
struction OF all written documents
given in evidence belongs TO the court
exclusively.
ne. Where a stenographic report
'of evidence Ia made part of tho GER
tltlcate OF evidence upon motion for
a new trial. and II shows objections
to questions or evidence. and rulings
OF the court thereon. and that such
rulings were excepted to. and tho par
ticular question or evidence COM
planned OF is specified distinctly in the
motion for new trial. or III an assign
ment OF error. or in brief or counsel,
$50 that the appellate court can readily
and safely find the particular question
or evidence to which the exception re-
lates. the appellate court will consider
the matter excepted to. though there Is
no formal bill OF exceptions thereto:
but such matter will not be c0nsId-
erad without such specifications, even
though such report Of evidence notes
such objections and exceptions.
"13. Where witness has testified
TO the correctness of a paper In evil
dence, and says that he wrote the
paper. and on cross-examInation is
asked to dewrite certain words with
a view OF comparison with the paper
purportlng to have been written by
him and objection is made, ia as with
In the. sound discretion OF the court
trying the case TO determine whether
or not under the circumstances the
experiment shall be made, and an APP
pellate court will not reverse the
Judgment OF the trial court for either
permitting or refusing the experiment
to be made. unless 1t plainly appear
that he has abused the discretion.
IA. Where deputy fire warden
who is paid a salary ont OF the state
treasury is witness In case relat-
4lb 10 ACth peEloEuleu III HIS oLLlCial
capacity, 1t is not error for counsel
In his address to the jury to read as
part OF his address a statute Of this
state showing how the money was
raised out OF which the salary OF the
officer was paid. This would not at-
feet the merits of the case. and per-
mission to read the same would be
within the discretion or the trial
Judge.