Wyatt v. State Farm Fire & Cas. Co.

• Decision Date: 04 March 1958
• Docket Number: No. 2803,2803
• Parties: Sherrell D. and Violet M. WYATT, Plaintiffs and Respondents, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Appellant, and Leo E. Rooney, Agent for State Farm Fire and Casualty Company, and Leo E. Rooney, individually, Defendants.
• Court: Wyoming Supreme Court

Page 137

322 P.2d 137

78 Wyo. 228

Sherrell D. and Violet M. WYATT, Plaintiffs and Respondents, v. STATE FARM FIRE AND CASUALTY COMPANY, Defendant and Appellant, and Leo E. Rooney, Agent for State Farm Fire and Casualty Company, and Leo E. Rooney, individually, Defendants.

No. 2803.

Supreme Court of Wyoming.

March 4, 1958.

Houston G. Williams, Casper, for appellant.

Frank L. Bowron, Casper, for respondents.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

This is an action brought by Sherrell D. Wyatt and Violet M. Wyatt against the State Farm Fire and Casualty Company and Leo E. Rooney as agent thereof to recover damages for the destruction of a garage covered by the fire insurance policy The application for the insurance policy was to insure the house on Lot 7, Block 12, Mountain View Subdivision, Casper, Wyoming, in the amount of $10,000 and valued at $10,000. It also applied for insurance of $3,000 on the garage close to the house, valued as enlarged at $5,000. This application was signed only by Sherrell D. Wyatt. One of the questions was, 'Does dwelling have mercantile occupancy?' and there was inserted in pen the term 'No'. There was also contained in the application a section to be filled out if the property was to be used other than as a dwelling. This section was not filled out. The policy itself provided for insurance of $10,000 on a one-story, approved roof, frame, one-family dwelling situated at Lot 7, Block 12, Mountain View Subdivision to Casper, Wyoming, and insurance of $3,000 on a one-story, approved roof, garage while situated on the above described premises. There was a mortgage on the property in favor of the Guaranty Federal Savings and Loan Association of Casper, Wyoming, and that was duly noted in the application. The premium on the policy was $49.92 which was paid to and retained by the company. A memorandum only of the policy was delivered to the plaintiffs herein, the original and complete policy having been delivered to the mortgagee of the premises.

In the petition herein the plaintiffs, after alleging the ownership of the property, the fact that Leo E. Rooney was the agent for the State Farm Fire and Casualty Company, and the fact that the agent agreed to sell and the plaintiffs agreed to purchase the policy of insurance, stated in Sections 6 and 7 as follows:

'6. That on or about said date, contracts of insurance were entered into by said parties covering 1. the domestic dwelling of the plaintiffs located on the above described property, 2. A commercial garage owned by plaintiffs and located on the above described property and rented by the plaintiffs to Glendale Heating Company, for which said company the plaintiffs are local agents and managers * * *.

'7. That at said time and place, the defendant Rooney personally inspected the premises to be insured, including the aforesaid garage building, which at the time of his inspection was occupied by workmen of Glendale Heating Company who were going about their usual tasks as employes of said company, and said defendant Rooney was told by plaintiffs that said building was used for commercial purposes and that said building was rented to the Glendale Heating Company by the plaintiffs, and said defendant Rooney at said time and place entered into the aforesaid agreement to insure said building against direct loss by fire, lightning and other damages and said Rooney accepted payment of the premium for said insurance on behalf of the Defendant State Farm.'

The plaintiffs further alleged that the garage above mentioned was destroyed by fire on August 18, 1955, without fault on the part of the plaintiffs. The plaintiffs accordingly asked judgment for $3,000 and additional damages of $250 as loss of rental by reason of nonpayment of the insurance.

The substance of the answer of the defendant is as follows: That this defendant denies that such contract of insurance, which is the only contract of insurance between plaintiffs and defendant, covered a commercial garage owned by plaintiffs and located upon the real property described in plaintiffs' petition; that as will appear from Exhibit A, plaintiffs' dwelling house was covered by such insurance; and that the garage in question was covered by such contract of insurance only when not in use as a commercial structure. Defendant further alleged that an addition was made to the premises without notifying the defendant or its agents.

The garage in question here was a large garage and was insulated. At the time when the insurance herein was written, it contained heating apparatus, a thirty-six inch square shear with which to shear metal, a gas jet for heating metal, wiring, work benches and other tools and equipment used in a sheet metal shop. Evidence on the part of the plaintiffs shows that Mr. Rooney, the agent, was informed that the garage was used for commercial purposes; that it was rented to the Glendale Heating Company, of which the plaintiff Sherrell D. Wyatt was manager, for the sum of $75 per month; that plaintiffs, through the Glendale Heating Company, were operating a shop in the garage; and generally of the use to which the shop was put. Two workmen were employed by the Glendale Heating Company who fabricated certain structures in the shop to be used apparently mainly for heating purposes by other people on premises not in question here. The agent Rooney testified that he was informed that the equipment above mentioned was stored in the garage but was not in use. He stated that he visited the premises before the insurance was written for the purpose of verifying the facts as to the use of the premises, and that at least at one time he stood in the door of the garage and looked in and saw the tools that were in the shop. He also admitted that when he visited the premises he saw a pickup truck and a couple of workmen. He denied that he was informed that the Glendale Heating Company was renting the garage. The discrepancy in the testimony was of course to be resolved by the trial court. The agent Rooney admitted that the plaintiffs made an application on behalf of the Glendale Heating Company to insure the equipment and tools in the garage. The plaintiff Sherrell D. Wyatt also testified that when he first made application for insurance he told Rooney that he had to make an addition to the garage, namely by what he called moving a barracks building which was close and putting it endways to the building; and the testimony on behalf of the plaintiffs shows that the addition was in fact made at or prior to the time when the insurance policy here in question was issued. This was denied by Rooney. Furthermore, the policy itself states: 'Permission Granted: * * * (c) To make alterations, additions and repairs and to complete structures in course of construction * * *', so that matter does not seem to be of importance herein.

The court found for the plaintiffs generally and particularly as follows:

'That the allegations of plaintiffs' petition are true excepting the allegation for loss of rental; that defendant, through its agent, knew that sheet metal tools and supplies belonging to one of the plaintiffs doing business as the Glendale Heating Company was located in the garage building in question at the time the insurance in question was applied for, that the application for insurance was prepared by defendant's agent from information which he elicited from plaintiffs and is substantially correct as it pertains to the dwelling house which was the principal property covered by said policy of insurance; that if said application failed to set forth the detailed use and...