67 F.2d 347 (4th Cir. 1933), 3520, Coleman Furniture Corp. v. Home Ins. Co. of New York

Docket Nº:3520.
Citation:67 F.2d 347
Case Date:October 03, 1933
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 347

67 F.2d 347 (4th Cir. 1933)




No. 3520.

United States Court of Appeals, Fourth Circuit.

October 3, 1933

Exclusion of testimony that insured property was as well protected without as with watchman service, required by sprinkler leakage policy sued on, held not prejudicial to plaintiff; stipulation for such service constituting warranty.

Page 348

T. X. Parsons, of Roanoke, Va., and John S. Draper, of Pulaski, Va. (John W. B. Deeds, of Pulaski, Va., and Showalter, Parsons, Kuyk & Coleman, of Roanoke, Va., on the brief), for appellant.

Alexander H. Sands, Jr., and Alexander H. Sands, both of Richmond, Va. (Gilmer, Wysor & Gilmer, of Pulaski, Va., on the brief), for appellee.

Before PARKER, and NORTHCOTT, Circuit Judges, and WATKINS, District judge.

NORTHCOTT, Circuit Judge.

This is an action at law instituted in the circuit court of Pulaski county, Va., by the appellant, herein referred to as the furniture corporation, against the appellee, herein referred to as the insurance company, in September, 1932. The cause was, on petition of the insurance company, removed to the District Court of the United States for the Western District of Virginia and tried at Roanoke, Va., in January, 1933. The trial judge directed a verdict for the defendant upon which verdict a judgment was entered. From this action of the court below this appeal was brought.

The furniture corporation was engaged in the manufacture of furniture in Pulaski, Va., and obtained from the insurance company a contract of insurance generally known as 'Sprinkler Leakage Insurance' or insurance against loss or damage suffered by sprinkler leakage, unaccompanied by fire. Other hazards than sprinkler leakage, including fire, were directly and explicitly excluded from coverage by the terms of the policy. The policy carried, among other provisions, the following: 'In consideration of the reduced rate at which this policy is written it is expressly stipulated and made a condition of this policy that the insured shall maintain in so far as it is under his control or supervision approved watchman and clock and approved outside water motor gong operated by sprinkler alarm.'

There is little, if any, dispute as to the facts. The warehouse of the furniture corporation where the loss occurred was equipped with a sprinkler fire prevention system. The loss occurred March 25, 1932, and was occasioned by the forceful knocking off of a head from the sprinkler system in the upper part of the warehouse. This allowed the water to escape from the pipes, and the furniture stored in the warehouse was damaged. It was agreed that the loss was $62,500.

The unavoidable conclusion from the evidence is that some one entered the warehouse and knocked off the sprinkler head. The furniture corporation had had some previous labor trouble. At the conclusion of the evidence a motion for a directed verdict was made on behalf of both the plaintiff and the defendant, and in passing on this motion the trial court found as a fact that at the time of the loss, and for some time prior thereto, the furniture corporation had maintained no adequate watchman service and that the insurance company had no knowledge of this fact. On these points the trial judge said: 'While there may be a difference of opinion as to what is to be an approved watchman service, there can be no difference in opinion that no service at all does not come within the terms of the policy; and there is no evidence at all to warrant the contention that the defendant company had any knowledge of the fact that prior to the loss, no visits were being made to any of the watch stations in the storage building and that it was at no time being entered by the watchman.'

It is contended on behalf of the plaintiff: That the clause in the policy promising that the insured should maintain 'approved watchman and clock and approved outside water motor gong' was not a warranty but merely a representation; that even if construed as a promissory warranty, substantial compliance therewith was sufficient; and that if it were a warranty and a breach had occurred, the insurance company must show that the loss was the proximate result of the breach.

It is further contended on behalf of the plaintiff that the question whether the watchman clause had been complied with was a question that should have been submitted to the jury. We cannot agree with this contention.

Page 349

When both sides submit motions for a directed verdict, and do nothing more, the effect is to waive a jury trial and submit all questions of fact as well as of law to the judge, and his finding has the same weight as the verdict of a jury. 1 As was said by Judge Parker in the case of Swift & Co. v. Columbia Ry., Gas & Electric Co. (C.C.A.) 17...

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