Skidmore v. Star Ins. Co. of America

• Decision Date: 30 November 1943
• Docket Number: 9482.
• Citation: 27 S.E.2d 845,126 W.Va. 307
• Parties: SKIDMORE v. STAR INS. CO. OF AMERICA.
• Court: West Virginia Supreme Court

27 S.E.2d 845

126 W.Va. 307

SKIDMORE v. STAR INS. CO. OF AMERICA.

No. 9482.

Supreme Court of Appeals of West Virginia.

November 30, 1943

Steptoe & Johnson and James M. Guiher, all of Clarksburg, for plaintiff in error.

W L. Wooddell and Wysong & Wysong, all of Webster Springs, for defendant in error.

FOX, Judge.

The Star Insurance Company of America complains of the judgment of the Circuit Court of Webster County, entered on the verdict of the jury, in a law action in which plaintiff sought to recover on an insurance policy issued to him by the defendant.The parties will be referred to as they stood in the court below.

On October 21, 1939, plaintiff purchased from the Board of Education of Webster County an abandoned school building, for which he agreed to pay the sum of $270.Of this amount $10 was paid in cash, and notes in equal amounts executed for the residue, payable in three and six months.The first of these notes was paid at or near maturity, and the second note was paid by defendant, as will be hereinafter explained.On April 21, 1940, plaintiff purchased from the defendant a fire insurance policy on the building in the amount of $1200.On June 6, 1940, the building so insured was destroyed by fire.The policy of insurance contained a mortgage clause in favor of the Board of Education, and some time after the fire defendant paid to the board the amount of the $130 unpaid note, with interest, amounting in the aggregate to $138.68.

Plaintiff proceeded by notice of motion, as he may do under Code, 56-2-6.His notice does not attempt to follow the statutory form provided by Code, 56-4-17, but sets out, in some detail, the provisions of the policy, and assumes to file with the notice the original policy of insurance.No question is raised as to this procedure, and it is not perceived that any could be, for the reason that the statute provides that in actions on insurance policies the original policy may be filed with the pleadings, if the pleading is in statutory form, and we see no reason why this practice may not be followed where the notice of motion procedure is followed.We doubt whether the practice should be followed in cases where the common-law declaration in assumpsit is used.In the absence of a statute providing therefor, exhibits may not be filed with the declaration in a common-law action.

Defendant filed its plea of the general issue.It then filed two special pleas.By special plea No. 1 it set up that the plaintiff wilfully, intentionally and unlawfully burned, or caused to be burned, the property insured; and special plea No. 2 avers the payment of the note of $130, with interest mentioned above.No question exists as to the fact of this payment, and the same is admitted in plaintiff's notice of motion.Defendant then filed its specifications of defense, setting up two grounds, each of which, it contends, constitutes a defense against plaintiff's claim.In the first item it sets up the provision of the policy reading as follows: "Unless otherwise provided by agreement in writing added hereto this Company shall not be liable for loss or damage occurring *** (d) while illuminating gas or vapor is generated on the described premises; or while (any usage or custom to the contrary notwithstanding) there is kept, used or allowed on the described premises fireworks, greek fire, phosphorus, explosives, benzine, gasoline, naphtha, or any other product of petroleum of greater inflammability than kerosene oil, gunpowder exceeding twenty-five pounds, or kerosene oil exceeding five barrels"; and then avers that, prior to the time of the fire complained of, quantities of gasoline were kept, used and allowed on the insured premises in violation of the conditions set out above.In the second item of defense there is set up a provision of the policy which reads: "This entire policy shall be void if the insured has concealed or misrepresented any material fact or circumstance concerning this insurance or the subject thereof; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after the loss".It then avers that the plaintiff, after the fire, filed proof of loss, in which he sets up the value of the property described at $1700, which statement it is averred was false and untrue; and that the value of the property was far less than said sum, and that the false statement was deliberately and intentionally made, with knowledge of its falsity, and with the purpose of deceiving and defrauding defendant.

Plaintiff made reply to the special plea No. 1, in which he denied that he burned or caused to be burned the property insured.In his reply to special plea No. 2, he, in effect, admits the payment of the $130 note, but contends that by making such payment defendant is estopped to deny its liability on its policy for the amount remaining due thereon, after deducting the amount paid on said note.In answer to the defendant's specifications of defense, plaintiff says, first, that he did not keep or store on the burned premises any gasoline; and, second, that the value of the property insured was, in fact, at least $1700.

The case was tried, resulting in a verdict for plaintiff in the sum of $800.During the progress of the trial a motion was made to direct a verdict for defendant, which was overruled.After the verdict was returned a motion to set it aside was overruled.On application of defendantwe granted this writ of error.

Seven separate points of error are assigned, three being of a general nature and relate to the trial court's refusal to direct a verdict for the defendant; its refusal to set aside the verdict and grant a new trial; and the point that the verdict was contrary to the law and to the great weight and preponderance of the evidence.The other points are: (1) That the overwhelming weight of the evidence showed that gasoline was being kept and allowed on the insured premises at the time of the fire, in violation of the conditions, warranties, and provisions of the policy sued on; (2)the court erred in modifying instruction No. 6 offered by plaintiff; (3) that error was committed in the exclusion of the testimony of plaintiff's witness regarding his opinion as to the cause or origin of the fire; and (4) that the court erred in admitting the testimony of four witnesses relating to the character, reputation and integrity of one of plaintiff's witnesses.It will be observed that no error is assigned resting on the second item of defendant's specification of defenses.

These assignments will be taken up in the order in which they are stated, the first two being considered together.

On the first two points it is undisputed that gasoline was kept on the insured premises.That fact is shown by the testimony of plaintiff's witnesses.There was only one person present at the fire, and that was Charles B. Skidmore, a son of plaintiff.Plaintiff had leased the school building to his son a short time before the fire.The son and his wife had gone to Webster Springs the day of the fire, and the wife remained there.Charles B. Skidmore, after making a trip to another section of the county, returned to his home, the insured property, about 3 o'clock in the morning of June 6.He says that he attempted to start a fire for the purpose of preparing a meal; that he made his usual preparations by putting paper, wood and coal in the stove and igniting it, and then, followed his custom of pouring kerosene on the fire.He says that by mistake he picked up a can containing gasoline, and in pouring it on the fire caused a flash, whereupon he dropped the can which caused the fire to spread.He attempted to put out the fire but was unsuccessful and the building was destroyed.He says that the gasoline was kept in the insured building in a two-gallon can, and that the can was about half full; and that the gasoline was kept and used for the purpose of cleaning parts of his truck, and washing his hands after he had worked on the truck he was operating at that time.

This being the undisputed evidence, plaintiff is, of course, bound by the fact that gasoline was kept on the premises.That was clearly in violation of the provision of the policy set out above providing against such practice; but another provision of the same policy, known as the "Work and Materials Clause", contains this provision: "Permission is hereby granted for such use of the premises as is usual and incidental to the occupancy as herein described and to keep and use all such appliances, devices, articles and materials (including such materials as are prohibited by the printed conditions of this policy) in such quantities as are usual and incidental to such occupancy."This presents the question of whether keeping gasoline on the premises was, in fact, a violation of the conditions, warranties and provisions of the policy sued upon; and that depends upon the force and effect we give to the clause last above quoted.

Considering together the two provisions of the policy referring to gasoline and other explosives, we reach the conclusion that the provision first quoted, in which the keeping or use of gasoline is prohibited, is modified by the provisions of the work and materials clause.The first provision apparently contemplates that there may be some deviation from its strict requirements, because it says that unless otherwise provided by agreement in writing, gasoline shall not be kept or used.The provision in writing requirement is met by the work and materials clause, and that provides that permission is granted to keep and use appliances, devices, articles and materials "including such materials as are prohibited by the printed conditions of this policy",...