Carva Food Corp. v. Dawley
| Decision Date | 06 March 1961 |
| Docket Number | No. 5193,5193 |
| Citation | 118 S.E.2d 664,202 Va. 543 |
| Parties | CARVA FOOD CORRORATION v. WILLIAM B. DAWLEY, INDIVIDUALLY, AND TRADING AS WILLIAM B. DAWLEY AND COMPANY. Record |
| Court | Virginia Supreme Court |
Guy E. Daugherty and Henry E. Howell, Jr. (Howell, Anninos & Daugherty, on brief), for the plaintiff in error.
Jack E. Greer and James L. Miller (Williams, Cocke, Worrell & Kelly, on brief), for the defendant in error.
On April 13, 1959, Carva Food Corporation, hereinafter referred to as Carva, instituted this proceeding by filing a motion for judgment against William B. Dawley, individually, and trading as William B. Dawley and Company, to recover $26,000.00 for damages alleged to have been sustained by it because of Dawley's failure to procure for it a policy of insurance on its stock of groceries covering loss caused by any accidental discharge of water from its sprinkler system installed in its warehouse in Norfolk, Virginia.
Carva alleged in its motion that in 1942, it had purchased a sprinkler leakage policy issued by the Firemens' Insurance Company, through Dawley, an insurance solicitor; that in 1948, after Dawley had terminated his business relations with the Firemens' Insurance Company, Dawley procured for it (Carva) a sprinkler leakage policy from Equitable Fire and Marine Insurance Company, hereinafter referred to as Equitable; that thereafter renewal policies were issued to it by Equitable, the date of the last renewal being May 10, 1954, expiring May 10, 1957; that Dawley falsely or inadvertently represented that the policy covered loss by reason of any accidental discharge of water from its sprinkler system; that it did not read or examine the policy of insurance, because of its confidence and reliance upon the representations of Dawley; that on October 15, 1954, an accident caused water to escape from its sprinkler system, and damaged its stock of groceries to the extent of $26,000.00; that it made due claim and proof of loss the Equitable; and that Equitable denied liability on the ground that its policy issued on May 10, 1954, excluded damage due to sprinkler leakage caused by windstorm.
Carva averred that if it had not been misled by the conduct and representations of Dawley, it could and would have purchased a policy which provided the desired coverage. It asks to recover from Dawley the amount of money it would have received from its insurance for the damages sustained by it had the provisions of the insurance policy been as represented by Dawley.
Dawley filed special pleas of the statute of limitations, and of res judicata and estoppel by judgment. Attached to its plea of res judicata and estoppel by judgment were copies of the pleadings in the United States District Court for the Eastern District of Virginia, in the case of Carva Food Corporation v. Equitable Fire and Marine Insurance Company, defendant, and William B. Dawley, third party defendant, a copy of the judgment in that case entered on April 4, 1958, refusing a reformation of the insurance policy of May 10, 1954, to the extent that it would insure Carva for the loss sustained, and dismissing the action with prejudice as against the principal defendant, and a copy of the policy of May 10, 1954, which contained under the heading, 'Perils not included,' the following exclusionary clause:
'The Company shall not be liable for loss by 'sprinkler leakage,' * * * caused directly or indirectly, by * * * (c) windstorm, cyclone, tornado or hurricane * * *.'
On October 15, 1954, a violent windstorm, cyclone, tornado or hurricane, known as 'Hurricane Hazel' blew the roof off Carva's warehouse, and during the storm its sprinkler system commenced discharging water, causing great damage to the stock of groceries stored in the building.
On January 25, 1960, the present case came on to be heard on the pleadings, and the lower court sustained the plea of the statute of limitations, Virginia Code, 1950, § 8-24, as amended, on the ground that this proceeding had been instituted more than one year after the cause of action had accrued.
The present writ was granted Carva upon its sole assignment of error that the court erred in not holding that the five-year limitation applied. On appeal, Dawley has assigned cross-error to the action of the court in overruling his plea of res judicata and estoppel by judgment. In view of our conclusion, it is not necessary to consider that assignment.
A correct determination of the matter turns upon the proper interpretation of Code, § 8-24, as amended, with consideration to be given to § 64-135.
Code, § 8-24, as amended, reads:
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