Kimball Ice Co. v. Hartford Fire Ins. Co.
| Decision Date | 12 April 1927 |
| Docket Number | No. 2590.,2590. |
| Parties | KIMBALL ICE CO. v. HARTFORD FIRE INS. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
G. W. Howard, of Welch, W. Va. (Harman & Howard, of Welch, W. Va., on the brief), for plaintiff in error.
A. G. Fox and D. E. French, both of Bluefield, W. Va. (D. M. Easley and Joseph M. Sanders, both of Bluefield, W. Va., on the brief), for defendant in error.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
This is an action at law, instituted in the circuit court of McDowell county, West Virginia, and removed to the United States District Court for the Southern District of West Virginia, to recover upon two certain policies of fire insurance, numbered 8656 for $2,800, and 26,996 for $8,000, issued on the 12th of February, 1924; the first named policy being upon a one-story frame building of the Kimball Ice Company, located on Chestnut street, at Kimball, McDowell county, W. Va., and the second upon the machinery, boilers, and supplies, including fixtures and furniture, in said building. The policies were taken out on the date mentioned in the name of the Kimball Ice Company, by Sol Kaufman, general manager; said Kaufman being the owner of one-fourth of the total stock of the Kimball Ice Company, and who was in complete control and management of the company at the time of taking out the policies, and acted solely in its behalf. The policies were issued through the Flat Top Insurance Agency, at Bluefield, W. Va., and secured by R. B. Taylor, insurance solicitor for the said agency.
The fire occurred on the 12th of May, 1924, and caused a total loss of the entire property covered by the policies. Proofs of loss were duly made, and the insurance company declined to pay anything on account of the policies, and this suit was instituted. Defendant filed its plea denying liability, and set forth specifically in its bill of particulars the grounds of its defense that under the provisions of the policies no recovery could be had, and in addition defendant filed a special plea setting forth that after the procurement of the policies aforesaid by the said Kaufman, acting in the name and on behalf of the Kimball Ice Company, he caused the premises to be burned, to obtain the insurance money thereon.
The Kimball Ice Company filed replications to the pleas interposed by the defendant, and especially denied that the property was burned, or caused to be burned, in order to procure the insurance thereon, and that, as well under the specifications of objection enumerated by the insurance company under the clauses of the policies, as because of the facts in connection with the alleged burning of the property, the insurance company was liable on both policies, and the plaintiff entitled to recover the full face value thereof.
The court passed upon the questions raised by the pleadings, as will hereinafter be specifically shown, and submitted the case to the jury as well on the technical questions arising upon the face of the policies as the action of the plaintiff, by and through its general manager and stockholder aforesaid in burning the insured property. The jury returned a verdict in favor of the insurance company upon the issues joined. Plaintiff thereupon moved the court to set aside the verdict of the jury, first, as contrary to the law and the evidence; second, for error in admitting improper and refusing to receive proper testimony; and, third, because of error in the court's charge to the jury. It is to the court's action in the particulars mentioned that this writ of error is sued out.
The assignments of error greatly tend to simplify the issues submitted for the determination of the court. They are that the court erred in permitting the defendant to file its specifications of defense set forth in its plea No. 1, denying liability generally under the policies; in overruling the motion to strike out plea No. 2 relating to the increase of hazards to the property, and the unlawful destruction of the same; in refusing to strike out the testimony of the defendant's witnesses Ayres, Horan, and Welcher; in charging the jury favorably to the defendant upon the plea regarding the burning of the property by plaintiff's manager, as will be hereafter fully recited; in overruling plaintiff's motion to set aside the verdict of the jury and award a new trial; and in entering judgment thereon in behalf of the defendant. The assignments of error will be briefly considered.
(A) The assignments involve the ruling of the lower court upon the several technical questions raised by the defendant's plea upon the merits, and specifically enumerated in the bill of particulars filed setting forth the same. Defendant insisted that the policies contained provisions, conditions, and warranties disentitling a recovery thereunder, arising, among other things, from the act of the plaintiff, a manufacturing establishment, in discontinuing operation of the plant for 10 days; for its failure to have an unconditional and sole ownership in fee of the property insured; in permitting the insured premises to become vacant and not occupied for a period of longer than 10 days; and for its failure to give immediate notice in writing of the alleged loss and damage to the property insured, with a view of further protecting the same or any part thereof not actually burned.
The several questions thus presented are ordinarily of vital importance, as affecting the liability under an insurance policy, and as to each of which there is much contrariety of opinion among the courts. They all become of little moment here, as the court submitted the same — that is, the question as to the provisions, conditions, and warranties of the policies — to the jury to be determined in the light of the facts properly applicable to the same, which rulings of the court were favorable to the plaintiff, as well as its comments upon the weight and sufficiency of the testimony, and the right to introduce the same, to which no exceptions were taken by plaintiff, and the assignments of error hence do not present any alleged error in the action of the court in the respects mentioned.
(B) The defendant, predicated upon the clause in the policy denying to the assured the right of recovery "where the hazard is increased by any means within the knowledge or control of the insured," interposed its plea that the plaintiff was not entitled to a recovery because the fire resulted from the wrongful and fraudulent act of plaintiff's manager and stockholder, who at the time was in complete charge and control of the plant and property. This plea the plaintiff moved to strike out, which the court overruled, and the court thereupon in its charge submitted that question also to the jury, instructing them as follows:
The instruction of the court given at the...
To continue reading
Request your trial
-
Nuffer v. Insurance Co. of North America
...5 Cir., 235 F.2d 178, 179; Firemen's Mut. Ins. Co. v. Aponaug Mfg. Co., supra, 149 F.2d 359, 361; Kimball Ice Co. v. Hartford Fire Ins. Co., 4 Cir., 18 F.2d 563, 565-566, 52 A.L.R. 799; Meily Co. v. London & Lancashire Fire Ins. Co., 3 Cir., 148 F. 683; D. I. Felsenthal Co. v. Northern Assu......
-
American States Ins. Co. v. Symes of Silverdale, Inc.
...Intentional Destruction by a Corporate Officer, Employee, or Stockholder, 37 A.L.R.3d 1385 §§ 2[a], 3 (1971); Kimball Ice Co. v. Hartford Fire Ins. Co., 18 F.2d 563 (4th Cir.1927) (insurer not bound to indemnify loss caused by act of arson of general manager who held one quarter of capital ......
-
Erlin-Lawler Enterprises, Inc. v. Fire Ins. Exchange
...stock, but having complete control and management of the corporation, the latter may not recover. (Kimball Ice Co. v. Hartford Fire Ins. Co. (C.C.A. 4, 1927) 18 F.2d 563, 564, 565--566.) Where the minority shareholder is the president and a secured creditor of the corporation, but his part ......
-
Northwestern Mutual Life Insurance Co. v. Linard, 614
...17 L.Ed.2d 674 (1967); Baltimore American Ins. Co. v. Pecos Mercantile Co., 122 F.2d 143 (9th Cir. 1941); Kimball Ice Co. v. Hartford Fire Ins. Co., 18 F.2d 563 (4th Cir. 1927); Kisting v. Westchester Fire Ins. Co., 290 F.Supp. 141 (D.Wis. 1968), aff'd, 416 F.2d 967 (7th Cir. 1969) (proof m......