Kanawha In v. Co

• Decision Date: 10 September 1929
• Docket Number: (C. C. No. 420.)
• Citation: 149 S.E. 605
• Parties: KANAWHA INV. CO. v. HARTFORD STEAM BOILER INSPECTION & INS. CO.
• Court: West Virginia Supreme Court

149 S.E. 605

KANAWHA INV. CO.

v.HARTFORD STEAM BOILER INSPECTION & INS. CO.

(C. C. No. 420.)

Supreme Court of Appeals of West Virginia.

Sept. 10, 1929.

As Modified, on Denial of Rehearing, Oct. 7, 1929.

(Syllabus by the Court.)

Case Certified from Circuit Court, Kanawha County.

Action by the Kanawha Investment Company against the Hartford Steam Boiler Inspection & Insurance Company. The circuit court sustained plaintiff's demurrer to defendant's plea, and on its own motion certified said action to the Supreme Court of Appeals for review. Affirmed.

Wehrle & Murphy, of Charleston, and Steptoe & Johnson and James M. Guiher, all of Clarksburg, for plaintiff.

E. Sidney Berry, of Hartford, Conn., and Brown, Jackson & Knight, of Charleston, for defendant.

MAXWELL, J. [1, 2] The plaintiff, as owner of the People's Exchange Bank Building in the city of Charleston, carried a policy of insurance with the defendant on certain electrical machinery in said building. The coverage was for damage caused directly by the breakdown of any of such machinery within the term of the policy. During the term of this policy the plaintiff also carried $350,000 of fire insurance on said building; the same being represented by policies in 12 different companies. Within the period of the said policy written by the defendant, there was a breakdown of one of the plaintiff's elevator motors covered by said policy. The breakdown was accompanied by a fire, which seriously injured the motor, but did not extend beyond the housing of the motor. In this suit the plaintiff seeks to recover of the defendant the sum of $930, covering the loss and damage occasioned by the breakdown and fire. The defendant admits its liability under the policy for the damage caused by the electrical breakdown in said motor, which damage it estimates at about $150, but denies that it is solely liable for the damage resulting from the fire, which accompanied or was incident to the breakdown. It says that the latter loss should be shared in proper proportion by the defendant and all of the fire insurance companies which were carrying insurance on the bank building at the time of this accident. It predicates this position on the following paragraph of the policy:

"If at the time of an accident covered by this policy there shall be any other similar, valid and collectible insurance against damage to property, the assured shall in no event demand or recover of the company any greater proportion of the loss from damage to property than the insurance applicable under this policy to such loss bears to the whole amount of such insurance thereon."

These matters are all set forth in defendant's "Plea No. 1-A." The circuit court sustained the plaintiff's demurrer to said plea, and on its own motion certified its said action to this court for review. We cannot approve the construction, urged by defendant, that the phrase "other similar * * * insurance, " appearing in the above-quoted paragraph, includes the general fire insurance policies which were in force on the...