Melton v. Aetna Ins. Co.
| Citation | 157 S.E. 33,110 W.Va. 73 |
| Decision Date | 10 February 1931 |
| Docket Number | 6848. |
| Parties | MELTON v. ÆTNA INS. CO. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1931.
Syllabus by the Court.
Insurance company issuing fire policy without formal application held not to waive provision of policy that premises must be owned by insured.
Where a statutory fire insurance policy has been issued and accepted upon a building without formal written application therefor which policy contained the standard provision that the policy shall be void "if the subject of insurance be a building on ground not owned by the insured in fee simple," and the insurer has been given no information express or implied that the building was not on land so owned, and after destruction of the building by fire it was ascertained that the same was erected on land to which the insured had no title whatever, but was erected on a stranger's land by inadvertence or mistake of which the insurer had no knowledge at the time of the fire, the insurer has not waived the quoted stipulation. Under such circumstances, the quoted part of the contract could be waived only by the manner therein prescribed.
Error to Circuit Court, Kanawha County.
Action by Joanne Melton against the Ætna Insurance Company. Plaintiff recovered judgment in the common pleas court, and the circuit court denied defendant a writ of error and supersedeas, and defendant brings error.
Reversed verdict set aside and case remanded.
Steptoe & Johnson, Stanley C. Morris, and J. Hornor Davis, II, all of Charleston, for plaintiff in error.
L. E Given and Thomas Coleman, both of Charleston, for defendant in error.
The Ætna Insurance Company complains of a judgment entered by the circuit court of Kanawha county which denied it a writ of error and supersedeas to a judgment of the common pleas court for $2,110 recovered by Joanne Melton in an action of assumpsit upon a policy of insurance upon a dwelling house.
Joanne Melton owned lots 7 and 8, block I, situate in Chesapeake Kanawha county. A dwelling, intended as a gift to plaintiff, was erected by plaintiff's husband so as to enhance the value of the property; and on April 3, 1926, the defendant insurance company, through its local agent, issued to plaintiff a fire insurance policy effective for three years, during which time the house was destroyed by fire. It was thereafter learned that the dwelling was not located on lot 7, as was supposed, but in fact was situate on lot 6, owned by Willie Bowen; and for that reason, payment under the terms of the policy was refused, defendant contending that the insurance contract had been breached and relying on the provisions in the policy which stated that: "This entire policy shall be void, unless otherwise provided by agreement in writing added thereto, (a) if the interest of the insured be other than unconditional and sole ownership; or (b) if the subject of insurance be a building on ground not owned by the insured in fee simple. ***"
It is to be noted that no written application for the insurance was made by the plaintiff. According to the testimony of the insurer's agent, he knew that all the Melton property was in the wife's name and he asked Melton if he wanted it written as his other insurance. Melton testified that the agent made no inquiries regarding the title; and the theory of plaintiff's case is stated in instruction III, given by the court:
"The court further instructs the jury that if you believe from the evidence that the defendant insurance company issued the policy in question without a written application therefor, and that no representation was made by the plaintiff, or her agent unto said defendant, or its agent, relating to the ownership of the said dwelling destroyed by fire, or the lot on which the same was situated, and that the agent of the defendant company at or before the issuance of said policy made no inquiry as to the true ownership of said dwelling or lot, that the said defendant insurance company thereby waived the two provisions contained in the printed policy providing that said policy should be void 'if the interest of the insured be other than unconditional and sole ownership' or that 'if the subject of the insurance be a building upon ground not owned by the insured in fee simple', provided that you further believe that the plaintiff, or her agent, had no knowledge or information that such dwelling was situated on a lot not owned by said plaintiff."
This is the pivotal question. Questions of fact, intimating that the fire may have been of incendiary origin and indicating that plaintiff's husband may have known, prior to the fire, that the dwelling had been built on the wrong lot, have been determined by the jury favorable to plaintiff; hence, we are now concerned only with the legal principle involved.
The case cited by plaintiff's counsel to uphold her theory is that of Wolpert v. Northern Assurance Company, 44 W.Va. 734, 29 S.E. 1024, which held "If an insurance company elects to issue its policy of insurance against a loss by fire without any regular application, or without any representation in regard to the title to the property to be insured, it cannot complain, after a loss has occurred, that the interest of the insured was not correctly stated in the policy, or that an existing incumbrance was not disclosed." That decision followed a Virginia case (Morotock Insurance Co. v. Rodefer, 92 Va. 747, 24 S.E. 393...
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