Hawkins v. Glens Falls Ins. Co.
| Decision Date | 04 December 1934 |
| Docket Number | 7930. |
| Citation | 177 S.E. 442,115 W.Va. 618 |
| Parties | HAWKINS et al. v. GLENS FALLS INS. CO. |
| Court | West Virginia Supreme Court |
Submitted October 30, 1934.
Syllabus by the Court.
1. Where a proof of loss under a fire insurance policy claims a total loss of the insured personal property and the proof at the trial shows that after the fire adjusters for the insurer inspected the insured property or declined the opportunity to do so; that the insured requested the advice of an adjuster for the insurer as to the course to be taken concerning the insured property, and, in response, was merely advised to follow the policy provision concerning it; that thereafter the insured, with the aid of several other persons, removed from the premises where the fire occurred a quantity of personal property of doubtful value and condition and caused it to be fully and carefully listed; and that such property excepting a small part thereof pilfered from the insured, had been preserved intact and was in the possession of the insured at the time of trial, the question of fraudulent false swearing in the proof of loss on account of not excepting therefrom the property so removed and saved is for the jury.
2. In the state of the record outlined above, the question of whether there had been a compliance with a policy provision requiring the insured to separate damaged from undamaged property is also for the jury.
3. Proof that the insured property was burned by the willful act of the insured's agent, without more, is not sufficient to defeat recovery on a fire insurance policy on the ground of incendiarism on the part of the insured.
4. It is not error to decline an instruction for defendant, the substance of which has been adequately covered by other instructions given at the request of defendant.
Error to Circuit Court, McDowell County.
Action by notice of motion by S. A. Hawkins and another, trading and doing business as the Hawkins Sundry Company, against the Glens Falls Insurance Company. Judgment for plaintiffs, and defendant brings error.
Affirmed.
See also, 173 S.E. 645.
Steptoe & Johnson, Stanley C. Morris, and J. Hornor Davis, 2d, all of Charleston, for plaintiff in error.
Sale St. Clair & Sale, of Welch, for defendants in error.
S. A Hawkins and Hattie B. Hawkins, trading and doing business as Hawkins Sundry Company, brought notice of motion on a fire insurance policy issued to them by the defendant, Glens Falls Insurance Company, upon a stock of goods located in a building wherein they did a drug store business at Davy, McDowell county, W.Va. A demurrer to the notice was overruled and the defendant pleaded the general issue, filed a special plea alleging that the insured property had been burned by the policyholders or by one of them, and filed its specifications of defense, setting out several respects in which it contended that conditions and warranties of the policy of insurance had been violated by the policyholders. From a judgment, based upon a verdict in favor of the plaintiffs for $1,012.02, the defendant company prosecutes this writ of error.
The errors relied upon here by the defendant in the trial court are:
(1) That at the trial it proved incendiarism to the degree that all reasonable minds would unite in regarding it established as a fact and therefore that the trial court erred in refusing a peremptory instruction in behalf of the defendant; (2) that inasmuch as the plaintiffs filed a proof of loss in which they made oath to a total destruction of the insured property, and inasmuch as the proof at the trial shows that a material and valuable part of the property insured was salvaged, that the insured are shown as a matter of law to have been guilty of a fraudulent breach of the conditions of the policy, and therefore the trial court erred in not giving a peremptory instruction on behalf of the defendant; and (3) that the trial court erred in the giving of certain instructions on behalf of the plaintiffs and in refusing to give certain instructions on behalf of the defendant.
The struggle in the trial court was lengthy, tedious, and vigorously contested on both sides; each issue of fact was developed and countered to its ultimate ramification. Within the scope of a written opinion, we cannot discuss all of the various matters of fact upon which the decision of the case must, in the main, rest. We simply comment upon those that seem to us controlling.
The place of business operated by the plaintiffs was in a street running parallel with the railroad which lay across the street from plaintiffs' store. Looking from the railroad towards plaintiffs' store, to the right is the Sneider-Harris building, and to the left is the building occupied by the Army & Navy store. All three buildings are two-story and the proof shows that in the store occupied by the plaintiffs' store, there is an apartment in which his family lived, and that there is a similar apartment over the Army & Navy store in which the Hunt family lived. Both the buildings occupied by plaintiffs and the Army & Navy store are of brick construction. The three buildings do not adjoin, but are separated by spaces of apparently about six feet wide, and between the Army & Navy store building and the building occupied by the plaintiffs an outdoor stairway goes up from the sidewalk to a covered landing from which both the apartments are entered.
On the night of Friday, July 30, 1932, fire broke out in the Sneider-Harris building. This fire burned all that night, all of the following day, and into Sunday, the day on which the fire broke out about 2 o'clock in the morning in the plaintiffs' place of business.
The main circumstances depended upon by the plaintiff in error, as showing incendiarism, are the following:
1. A conversation had between 6 and 7 o'clock on the evening of the day preceding the fire (which occurred between 2 and 3 o'clock in the morning) between Tipton Hawkins, son of the insured, and Katherine Hunt and Gladys Davis, who were at the time residing in the adjoining apartment, in which it is asserted that Tipton Hawkins stated that there would be another fire that night in the drug store building adjoining; that they had better pack their stuff and get ready to move; and that they would not, the next day, at that place, eat a chicken that they were preparing. When asked how he knew there would be another fire, he allegedly stated he had heard a conversation on the roof of the drug store building immediately before the time at which he was speaking, "that didn't sound so good."
Katherine Hunt and Gladys Davis both testified to the statements supposedly made by Tipton Hawkins in this conversation. Tipton Hawkins denied the statements categorically and in detail. It is urged by the plaintiff in error that Tipton Hawkins' own bare denial should not be accepted as overcoming the superior proof of the defendant on this question. At best, this is a difficult proposal to accept as a matter of law. Since, under the circumstances, the bare denial of Tipton Hawkins appears to have been the only proof available to the defendant in this connection, we cannot escape regarding it as a jury question.
2. A conversation had by Tipton Hawkins with Carl Burgess immediately preceding the fire, and the circumstances leading up to that conversation. Burgess testified that he happened by the drug store just a few minutes before the fire, and that Tipton Hawkins at that time was standing at the front doorway with a shotgun resting against his chest, holding the main door open with one hand and the screen door open with the other; that while in this position and before discovering the presence of Burgess, Hawkins spoke to some one in the back of the drug store in effect saying, "for God's sake" for them to hurry before a crowd gathered, to which abjuration by Hawkins the person in the back of the store responded, Just after this occurred, according to Burgess' testimony, Clarence Griffith walked out past Hawkins at the front door and spoke to him, Burgess, after which Hawkins pushed him and urged him to leave because something was about to happen he would not wish to witness. Burgess testified that he went home and within a few minutes the alarm drew him back to the drug store where the fire was in progress.
Clarence Griffith was produced as a witness for the defendant in the trial court, but was not asked concerning this circumstance. He totally fails to corroborate the statement of Burgess. Furthermore, the whole of it was unequivocally and emphatically denied by Tipton Hawkins, and several other witnesses who were with Tipton Hawkins on the evening of the fire testified to circumstances that would have rendered it highly improbable, if not impossible, of occurrence. In these circumstances, we cannot fail to believe it was a question for the jury.
3. Clarence Griffith, who was employed at the garage operated by Hunt, another witness for defendant, testified that on the evening of the fire he at one time had sold five gallons of gasoline to Tipton Hawkins and four gallons to Max Cline, and that on each occasion the gasoline had been taken away in a container furnished by Griffith; and that on the last occasion, when Hawkins took the gasoline away, Griffith asked him what he was going to do with it, and received a reply indicating the purpose of Hawkins to be the burning of the drug store and the finishing of the burning of the clothing store next door. Griffith testified that he went with Hawkins to the drug store building and there saw the gasoline inside the building.
On this question, Hawkins is impeached by contradictory statements of his own concerning the sale of the gasoline;...
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