Kimball Ice Co. v. Fire

• Citation: 100 W.Va. 728
• Decision Date: 02 February 1926
• Docket Number: (No. 5572)
• Court: West Virginia Supreme Court
• Parties: Kimball Ice Company v. Springfield Fire & MarineInsurance Co.

100 W.Va. 728

Kimball Ice Company

v.Springfield Fire & Marine Insurance Co.

(No. 5572)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1926.

Decided February 2, 1926.

1. Fire Insurance Complete Equitable Title in the Insured Will Satisfy Condition in Fire Insurance Policy Requiring Interest of Insured in Subject of Insurance Shall be Unconditional and Sole Ownership.

Complete equitable title in the insured will satisfy the condition in a fire insurance policy requiring that the interest of the insured in the subject of insurance shall be unconditional and sole ownership. (p. 730.)

2. Same Where Soliciting Agent Has Knowledge of Past Conditions or Existing Facts Which at the Time Would Serve to Void Policy, Company Cannot Insist Upon Such Facts For Purpose of Avoiding Liability.

Where the soliciting agent has knowledge of past conditions or existing facts which at the time would serve to void the policy, the company issuing the policy cannot insist upon such facts for the purpose of avoiding its liability, (p. 731.)

Error to Circuit Court, McDowell County.

Action by the Kimball Ice Company against the Springfield Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

Harmon & Howard, for plaintiff in error.

French, Easley & Easley and Sanders, Crockett & Sanders, for defendant in error.

Steptoe, Maxwell & Johnson and James M. Guiher, Amici Curiae on Application for Rehearing.

Litz, President:

This is an action, by notice of motion for judgment, to recover loss under a fire insurance policy issued February 12, 1924, for a term of one year, to the plaintiff Kimball Ice Company, a corporation, by the defendant Springfield Fire & Marine Insurance Company, through its general agent, Flat Top Insurance Agency, in the sum of $2,000.00, covering on a one story frame, composition roof building situated in the town of Kimball, McDowell county, "occupied as an ice plant"', and the machinery, boilers, furniture and fixtures therein contained. To the judgment upon a verdict for the plaintiff in the sum of $2,000.00 the defendant prosecutes this writ.

The policy stipulates, "Unless otherwise provided by agreement in writing added hereto this company shall not be liable for loss or damage occurring * * * if the subject of insurance be a manufacturing establishment * * * while it ceases to be operated beyond a period of ten days"; or "while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of ten days." It further provides, "This entire contract shall be void unless otherwise provided by agreement in writing added hereto if the interest of the insured be other than unconditional and sole ownership".

The Flat Top Insurance Agency, a corporation, with headquarters at Bluefield in Mercer county, conducts a general insurance agency. In the name of its president and vicepresident it represents, and acts as general agent for, numerous fire insurance companies, including the defendant, Springfield Fire & Marine Insurance Company.

February 12, 1924, Sol Kaufman, the general manager and a stockholder of the plaintiff corporation, applied to one R. B. Taylor, who as representative of the Flat Top Insurance Agency solicited and examined subjects of, insurance, delivered policies, and collected premiums, for insurance in the sums of $2,800.00 on the building and $8,000.00 on the machinery, boilers, supplies, furniture and fixtures therein contained. The following day the agency through its vice president issued to the plaintiff the policy sued on and four additional policies in other fire insurance companies aggregating $10,800.00, effective February 12, 1924.

The plaintiff's plant, equipped with second hand machinery, was constructed in the year 1920. It operated during the summer season in 1920, 1921 and 1922, but was never used after October, 1922. Through inspection of the property by Taylor at the time of the application the insurance company was put on notice that the building was occupied only as an ice plant, operating during the summer season, and that the condition of the machinery was such that it could not be placed in running condition within ten days. February 13 and March 6, 1924, and monthly thereafter, the Flat Top Insurance Agency sent plaintiff invoices for the premiums on the several policies, originally totalling $812.16. The property being again inspected about the middle of March by the rate adjuster sent by it, on March 19 the agency mailed plaintiff a credit memorandum evidencing a reduction of the premiums. April 30th the premiums, which had been charged to the plaintiff by the agency, were by the latter paid to the various companies. May 13th the property was destroyed by fire. Thereafter the agency collected from the plaintiff the premiums in full.

The defendant relies upon the following as grounds of defense:

(1) That the interest of insured was other than that of unconditional and sole owmership.

(2) That the subject of insurance was a manufacturing establishment and ceased to be operated beyond a period of ten days.

(3) That the building was vacant or unoccupied beyond a period of ten days.

None of the conditions involved was ever waived by agreement in writing added to the policy.

The basis of the first ground of defense is that the plaintiff did not obtain legal title to the land on which the plant was constructed until after the fire. The evidence shows, however, that it was the complete equitable owner thereof, long prior to the issuance of the policies. The purpose of the insurer in requiring information as to whether the interest of the insured be other than unconditional and sole ownership is merely to determine whether in case of destruction of the...