Koppers Coal Co. v. Dixie Fire Ins. Co.

• Decision Date: 16 May 1939
• Docket Number: 8852-8855.
• Citation: 3 S.E.2d 52,121 W.Va. 258
• Parties: KOPPERS COAL CO. v. DIXIE FIRE INS. CO., and three other cases.
• Court: West Virginia Supreme Court

3 S.E.2d 52

121 W.Va. 258

KOPPERS COAL CO. v. DIXIE FIRE INS. CO., and three other cases.

Nos. 8852-8855.

Supreme Court of Appeals of West Virginia.

May 16, 1939

Steptoe & Johnson, Stanley C. Morris, W. E Miller, and W. F. Wunschel, all of Charleston, for plaintiffs in error.

Mahan Bacon & White, of Fayetteville, for defendant in error.

KENNA Judge.

These four proceedings of notice of motion for judgment were brought in the Circuit Court of Fayette County by Koppers Coal Company against the defendant insurance companies for the purpose of recovering under fire insurance policies issued by each upon a storeroom in the town of Smithers upon a lot which is now owned by the plaintiff company. Separate specifications of defense were filed, and the cases were submitted to the trial judge in lieu of a jury under an agreed statement of fact in each. On May 3, 1938, judgments were entered in the Circuit Court against the following defendants in the following amount: Queen Insurance Company of America, $963.71; Dixie Fire Insurance Company, $1170.88 National Fire Insurance Company of Hartford, $1170.88, and New York Fire Insurance Company, $873.42.

Subsequent to the granting of these writs, counsel representing the parties entered into a stipulation, with the approval of this Court, consolidating the four cases which, subject to a slight amplification in the Dixie Fire Insurance Company and National Fire Insurance Company cases, involve identical questions. It will be unnecessary to discuss the additional question involved in the two cases just mentioned, because we think that the four cases rest upon the same fundamental question which arises before that question is reached.

Due to a corporate consolidation, there was a change of the plaintiff's corporate name, but this fact need not be considered.

On October 18, 1935, Mario Lodato executed a written lease of a storeroom in Smithers to the plaintiff company, the lease to become effective December 1st, and granting to the lessee the right to purchase the store building within one year from that date for the sum of ten thousand dollars, subject to certain specified adjustments.

Apparently the leased building was free from encumbrances, when plaintiff became the lessee and occupant. Shortly thereafter on November 21, 1935, a deed of trust to H. L. Carney, trustee for the Charleston National Bank, was executed by Lodato and wife. The indebtedness upon the note secured at the time of the occurrences giving rise to these controversies amounted to $4,854.17. Between nine and ten o'clock on the morning of November 28, 1936, Koppers Company exercised its right to purchase the storeroom, and, acting through F. E. Holman, district manager, accepted delivery of a general warranty deed and delivered to Lodato their check for eight thousand, eight hundred dollars subject to the agreement that the amount secured by the deed of trust due the Charleston National Bank, augmented by an unsecured note of four hundred dollars owed that Bank by Lodato should be paid. The payee indorsed the check and turned it over to B. E. Claypool, cashier of the Merchants National Bank at Montgomery, who, in turn, by telephone got at once in touch with the Charleston National Bank and informed it that he held the Koppers Coal Company check in the amount of eighty-eight hundred dollars and had been advised by that company and the payees from the proceeds of that check to pay to the Charleston National Bank a sum sufficient to cover Lodato's deed of trust indebtedness, together with interest, as well as the four-hundred dollar note. Claypool requested the Charleston National Bank to execute a release of its trust deed, and, together with the notes of Lodato and sight draft for a sum sufficient to meet the indebtedness they represented, to mail it to the Merchants National Bank. The Charleston National Bank promptly complied with these instructions, and on the same day deposited in the mail an executed release, the notes, sight draft and the insurance policies upon which these proceedings are based to which had been attached the standard mortgagee clause. These policies were payable to Lodato.

November 28th having been Saturday, the envelope containing these papers did not reach the Merchants National Bank until after the bank opened Monday morning, November the 30th. In the meantime, at about five-thirty A. M. a fire had destroyed the storeroom.

A short while after the papers were received by the Merchants National Bank of Montgomery, Lodato called the Charleston National Bank and informed it of the fire, and was informed by the Charleston National Bank that the release, along with the draft, notes and insurance policies had been mailed on Saturday. Thereafter, on the same morning, Lodato went to the Merchants National Bank and got from Claypool his notes stamped "Paid" and a duplicate deposit slip for the balance of the fund represented by the eighty-eight-hundred-dollar check of the Koppers Coal Company. The release of the trust deed, together with the insurance policies, was delivered by the Merchants National Bank to the manager of the plaintiff company on Monday, November 30th, but the release was not recorded until February 23, 1937, a date subsequent to the denial of liability under the insurance policies by the defendant companies. The deed from Lodato and wife to the plaintiff company was not recorded until April 27, 1937.

The insurance policies in the possession of the Charleston National Bank mailed by it to the Merchants National Bank at Montgomery and delivered to the Koppers Coal Company were written by the following companies in the following amounts Queen Insurance Company, $1,000; New York Fire Insurance Company, $2,000; National Fire Insurance Company, in effect November 29, 1936, $1,250, and Dixie Fire Insurance Company, in effect November 29, 1936,...