Petition for a Writ of Certiorari — Winding Gulf Collieries v. Board of Education

/ i Jemse

— APR 8 1945

CXARLIS FLARE aROPLEY

IN THE : nnn

Supreme Court of the United States

(

i

OCTOBER TERM, 1945

No 074

WINDING GULF COLLIERIES, Petitioner,

vs.

THE BOARD OF EDUCATION OF THE COUNTY OF

RALEIGH, WEST VIRGINIA, and ALLEMANNIA

FIRE INSURANCE COMPANY, Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT AND BRIEF IN

SUPPORT THEREOF.

J. W. MAXWELL,

Beckley, West Virginia,

Attorney for Petitioner.

Fioyp M. Sayre,

J. W. Maxwe tt,

G. Berx Lyneu,

RENNER PENS ETON ALN OTT NT SEE RA NTRS EN REN

INDEX TO PETITION

Page

CE I hi 6c e hd CAC deae cscs asnuncanetess 2

Ce OST ROE Fee Te epee oes 2

CRUSOE: TRRUIUEE os <n. ¥<5 vas ncnnndChhencesantes 2

PR DENG -w ccBinn cic tsd i icundkvasn deen ncees 6

Sen OE Tee TING. 0.06 5 650 eee ds wee sexavcnns 6

Specification of Errors to be Urged................ 11

Reasons for Granting of the Writ.................6. 18

PUQUOE haku vadasenna Saud sdGh aa ddhhe be Eee bene eees 15

INDEX TO BRIEF

I PR aac kawkne ch6k KA ChbSs esac esses

I, Cede Ciel tins cidesbaesdsabecesas

Nature and Character of the Proceeding............

I TB eNGe Cie bs wench yc Gwe cee ke xeeaseaeers

PE RES CEE e Tae ares kbGnanes sda sedan d6aasean

The statutory standard form of West Virginia

fire insurance contract,..........ccececeeeess

The enabling section of the statute,.............

The statute of West Virginia prescribing the

standard form of fire insurance policy is a

remedial statute, founded on public policy, and

those to whom it applies will not be permitted

to waive its provisions. The statute becomes a

part of the contract and prevails over stipula-

SE Gr Se UNI g abt hk KSA CORN a bantyeaes

Interpretation sole ownership clause,.........

The status of the title and ownership in the in-

PE RekGGRERAS ced RA c Od 0K 085 B04 ees

Contracting parties presumed to act lawfully,..

Intention to insure the whole title and indemnify

all interested parties—analysis of the contract,

The words, ‘‘for account of whom it may con-

cern,’’ create a trust relationship,............

Prohibitive statutory provisions prevail over

conflicting contractual stipulation.............

ii

INDEX TO BRIEF— (Continued)

The opinion of the Cireuit Court of Appeals over-

rides both the statute and the true legal mean-

ing of the language used in the contract,......

The Cireuit Court of Appeals adopted erroneous

factual premise—the authorities relied on do

UE GUI, 5 Koss news ccancsstetueh cadexeccs ss

The words ‘‘for account of whom it may con-

cern,’’ used in an insurance contract, are tech-

nical in their meaning and comprehend every

specie of property held in the res or subject of

insurance, and when the subject of insurance is

real estate, these words convert the policy into

a covenant real and the indemnity follows the

RO Se Fey ee eet Pat Te Ty Sierra

Where real estate is insured in the comprehensive

terms used in the instant policy and the prop-

erty is involuntarily destroyed, and the policy

matures, equity will reconvert the indemnity

into realty to protect the interests of the differ-

ent owners of the subject insured, and the

money will stand in the place of the building

and be held by each owner as of his former

eee rrr err te tT T Tr re creer eee

iil

Page

33

35

36

TABLE OF CITATIONS

Page

Allemannia Fire Insurance Company v. Winding Gulf

Collieries and the Board of Education of the

County of Raleigh, West Virginia, 60 F. Sup. 68,. 2,17

Am, Jur., Vol. 29, ‘‘Insurance,’’ Sec. 180, page 197,. .23, 26

Am. Jur., Vol. 29, ‘‘Insurance,’’ Sec. 190, page 206,. . 23, 26

Am. Jur., Vol. 20, ‘‘Evidence,’’ See, 187, page 182,.. 26

Am. Jur., Vol. 12, ‘‘Contracts,’’ Sec. 241, page 772... 27

Am. Jur., Vol. 29, ‘‘Insurance,’’ See. 205, page 214,... 28

American Steel Supply Syndicate, In re, 256 F.

agar iy os BOON TG Pg Oy Peg NE ne ae 29

Am. Jur., Vol. 12, ‘*Contracts,’’ Sec. 238, page 764,... 29

Am. Jur., Vol. 19, ‘‘Equitable Conversion,’’ Sec. 19,

yn ogg, Re EO RRA ORLY Sine 38

Board of Education of Raleigh County, West Vir-

ginia, v. Winding Gulf Collieries, 152 F. (2nd) 382, 2,17

Board of Education v. Harvey, 70 W. Va. 480, 74S. B.

MON y cWASUR UE WON NSS W chaveke bh ok bon eu Xs 7

Board of Education of Hancock County v. Hartford

Fire Ins. Co., 124 W. Va. 163, 19 S. E. (2d) 448,.. 26

Barbarsol Co. v. Leggett, (Ind.) 19 N. E. (2d) 481,... 27

Brough v. Higgins, 2 Gratt. 408, 19 Va. R. A. 423,. .37, 38, 39

Barton’s Chancery Practice, Vol. 2, (2d) See. 290,

Is ew tabins vices oscheiaas inva, 39

C. J., Vol. 26, ‘‘Fire Insurance-Statutory Forms,’’

cok ORES Ate aes 22, 26

Cooley’s Briefs on Insurance, Vol. 3, page 2171,..... 23, 28

C. J., Vol. 26, ‘Fire Insurance,’’ See. 78, page 81,... .23, 26

Chambers v. Cline, 60 W. Va. 588, 55 S. E. ie cue ie 25

iv

TABLE OF CITATIONS— (Continued)

Page

Clayton et al v. Nicely et al, 116 W. Va. 460, 182 S. E.

EM ke iek cpah sgh ce Wid needa nunna Uo eakibeincis 27

City Service Gas Co. v. Kelly-Dempsey & Co., 111 F.

Dee le 48 aes Er Cask i ahWet esas idacbonsciets 27

C. J., Vol. 26, ‘‘Fire Insurance,’’ Sec. 76, page 79,.... 29

Cooley’s Briefs on Insurance, Vol. 2, page 1265,...... 30, 39

Cooley’s Briefs on Insurance, Vol. 2, page 1282,...... 35

Clements v. Clements, 167 Va. 223, 188 S. FE. 154,..... 35

Clyburn v. Reynolds, (S. C.) 9S. E. 973,............ 37, 39

Culbertson v. Cox, 29 Minn. 309, 43 Am. R. 204, 13

SEs SERRATE ete py RIB ITN porn aR ge I 37, 39

Crisp County Lumber Co. v. Lee Bridges, 187 Ga. 484,

I We SERRE ee Ate VERSE orlebh Tabac aNecebenene 37, 39

Clark v. Leverett, 159 Ga. 487, 126 S. FE. 258,......... 37, 39

Chase v. Swayne, 88 Tex. 218, 53 Am. St. R. 742,

(homestead destroyed by fire),..............0.. 38

Duer, Vol. 2, ‘‘Marine Insurance,’’ page 28,......... 28

Ewing et al. v. Howard, 7 Wallace 499, 19 L. Ed. 293,.. 25

E. I. Du Pont De Nemours & Co. v. Claiborne-Reno

Co., 64 F. (2d) 224, 89 A. L. R. 238,............. 27

Ehnes v. Hronis et ux, 127 N. J. L. 551, 23 A. (2d) 592, 27

Fidelity-Phenix Fire Ins. Co. v. School District No. 62

of Jackson County, (Okla.) 174 p. 513,.......... 22, 26

Fidelity & Casualty Co. of N. Y. v. Lowenstein, 97 F.

Ae ape ee Ee Pe ey Peale oF een hens per ee 29

Findley v. Findley, 42 W. Va. 372, (conversion judi-

as ee i as Nis da hee hk Kok an deuehs 38

Great Northern Ry. Co. v. Delmar Co., 283 U. S. 686,

See Bh Be SS Ha AAR k eka educakinnseuackex 25

Green v. Green, (S. C.) 27 S. E. 952,................ 37, 39

Green v. Green, supra, (conversion of fire loss)...... 38

Vv

TABLE OF CITATIONS— (Continued)

Gorman’s Estate, In re, 321 Pa. 292, 184 Atl. 86,..... 35

Hagan v. Scottish Union & Nat. Ins. Co., 186 U. S. 423,

46 L. Ed. 1229, affirming same v. same, 98 F.

eee Oe oe een 4, 13, 28, 28, 30, 32, 37

Heim v. American Alliance Ine. Co. of N. Y. (Minn.)

pe ER re ere eer 22, 26

Hronish v. Home Ins. Co., 33 S. D. 428, 146 N. W. 558,.22, 26

Hamilton v. Royal Ins. Co., 156 N. Y. 327, 50 N. E. 863,

ge RES Bere ey PER oe en 22, 26

Hicks v. Randich, 106 W. Va. 109, 144 S. E. 887...... 23, 26

Hamlet v. American Fire Ins. Co., 107 W. Va. 687,

RS GR sik ahs} cask cebakeacwiousan cs 24

Henderson Development Co. v. United Fuel Gas Co.,

kore YS ES: SOc 27

Hooper v. Robinson & Cox, 25 L. Ed. 318,........... 28

Heist et al v. Dunlap & Co. et al, 193 Ga. 462, 18 S. E.

RE ELA sik Car w Ua ek sweet anc wa cna aie ne cs 29

Harrison v. Pepper, 166 Mass. 288, 44 N. E. 222,..... 35

Haxall’s Ex’ors. v. Shippen, (Va.-1839) 10 Leigh 536,

eB POE cb chain bene oak CKERs a dake Ke 37, 39

Hawes v. Lathrop, 38 Cal. 493, (conversion of insur-

ST PG 550s. 0 oe CE NKd OATES ROEM ba cle Suu 38

Haxall’s Ex’ors. v. Shippen, supra, (conversion fire

MD Pa iiie a bt eke COW KA TOA REA RE MAK OX comwn 38

US: TOT, WEB og ks vine danspcsnccuvurs 39

Joyce on Insurance, (2d) Vol. 2, Sees. 964, 966, page

MN RU kechceuhnaas kann paneiawteecieks bint ues 28, 37

Kirk et al v. Queens Ins. Co., 126 W. Va. 213, 27 S. E.

ET ER Ain Ks SEEN UATE Ka ME Uh gece eC Eh awak 24

Knox County v. National Bank City of N. Y., 147 U.S.

We Bk Gs SUR SACARE RNs Sb andcabLueeneiaadc 26

wgencee —

TABLE OF CITATIONS— (Continued)

Page

Lawyer v. Globe Mutual Ins. Co., 25 S. D. 549, 127

Pe Ie ASKS TCA a ae hnA be VERSE R ED CAKE 22, 26

Langley v. Owen, 52 Fla. 302, 42 So. 457, 11 Ann. Cas.

PU aGEARAI SG hee ERSEN MN cu ENE e eee eb nteas ¥ib sa 29

Son Fi ee: CS De es WO, OA in 6 dc dcidccdeucdsca 30

Murdock v. Franklin Ins. Co., 33 W. Va., 407, 10 S. E.

TEES. Wak baht de deus vede ke cak lek eu uhk vous 4, 28,30

Marguerite Coal Co. et al v. Meadow River Lumber

Os. 96 W. Va. G6; 127 G. B G4,...........055. 29

Miltenberger v. Beacom, 9 Pa. St. 198,.............. 37

McCoy v. Ferguson, 249 Ky. 334, 60 S. W. (2d) 931,

(condemnation conversion), .................. 38

Northern Assurance Co. v. Grand View Bldg. Asso.,

ope es Fe 8) ere 22, 26

New Orleans & Southern American S. S. Co. v. Grace

& Co., 26 F. (2d) 967, 969, certiorari denied 49 S.

Ct. 33, 278 U. S. 636, 73 L. Ed. 552,............. 28

Palatine Ins. Co. v. Commercial Trust Co., (Okla.)

Be UE kaa ch EW es coed ek ano ukeNackasadeias 22, 26

PS WOR 2h MGS ch hss np beedacctckencsavas 28

Pomeroy’s Eq. Jur., Vol. 4, (5th Ed.), See. 1168, pages

SG. Richi RAS SER RehaAMALSO aN Rbkeandehes 38

Rothchild v. Winthel, 191 Ind. 85, 131 N. FE. 917,...... 29

Shinn v. West Virginia Insurance Co., 104 W. Va. 353,

He Ws MRAM E GEG a dek a cake eee OkL ES Cie ke sees 23, 26

State v. Wotring, 56 W. Va. 394, 49 S. E. 365,....... 23, 26

State for use, ete. Finley Bros. Co. v. Freshwater, 107

See RO OS ere ee eee 23, 26

Sheppard v. Peabody Ins. Co., 21 W. Va. 368,........ 30

Sampson v. Grogan, (R. I.) 42 Atl. 712, Opinion of

te NA oko hbk bad bes WK eke cc hak

a |

a

“_

TABLE OF CITATIONS— (Continued)

Page

Thomas v. Matthiessen, 232 U. S. 221, 58 L. Ed. 577,. .23, 26

Tug River Lumber Co. v. Smithey, 107 W. Va. 482, 148

De SG NG SEWER TSU AOR ERS bat eE Ne A~s aed 23, 26

Tyree v. Virginia Ins. Co., 55 W. Va. 63, 46S. E. 706,. 24

Thompson v. Gearheart, 137 Va. 427, 119 S. KE. 67.... 35

Vance on Insurance, page 421,.................... 28, 37

Wild Rice Lumber Co. v. Royal Ins. Co., 99 Minn. 190,

ee Ny I he dh ick Bede nese chouswas 22, 26

Welch v. London Assurance Corp. (Pa.) 151 Pa. St.

ly Be MG chi Neha deed kuwace herehsdet ss 37

Official Code of West Virginia, Sec. 7, Art. 4, Chap. 33 43

Official Code of West Virginia, See. 8, Art. 4, Chap. 33, 51

U. 8S. Judicial Code, See. 240 (a)—(28 U.S.C.A., See.

WOU dias Pathepvgausas 15s cudbaeueneuasas exes 2,17

Vili

au Se el ee es ee oe

IN THE

Supreme Court of the United States

OCTOBER TERM, 1945

No.

WINDING GULF COLLIERIES, Petitioner,

vs.

THE BOARD OF EDUCATION OF THE COUNTY OF

RALEIGH, WEST VIRGINIA, and ALLEMANNIA

FIRE INSURANCE COMPANY, Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

To The Honorable, The Chief Justice And The Associate

Justices of The Supreme Court of The United States:

The petitioner, Winding Gulf Collieries, a corporation,

prays that a writ of certiorari issue to review the decree

or judgment of the United States Cireuit Court of Appeals

for the Fourth Circuit, reversing the decree or judgment

of the District Court of the United States for the Southern

District of West Virginia, entered in the case then therein

pending upon a bill of interpleader instituted by Alleman-

nia Fire Insurance Company against The Board of Edu-

cation of the County of Raleigh, West Virginia, and vour

SAAR

2 Petition for Writ of Certiorari

petitioner, which said decree or judgment of said District

Court awarded and sustained the claim of your petitioner

to certain funds payable under numerous insurance poli-

cies issued by a number of insurance companies.

OPINIONS BELOW.

The original opinion of the District Court (R. 80) is

reported in 60 F. Sup. 68, sustaining the claim of the peti-

tioner to the funds in controversy, for a proper distribu-

tion of which petitioner and respondent, The Board of

Education of the County of Raieigh, West Virginia, were

convened on bill of interpleader by Allemannia Fire Insur-

ance Company. The finding of fact is fully stated in the

record. (R. 92.) The conclusions of law were made by the

trial court. (R. 96.) The decision of the Circuit Court of

Appeals, reversing the District Court, is reported in 152 F.

(2d) 382. (R. 137.)

JURISDICTION.

The original opinion of the Cireuit Court of Appeals

was made and its judgment was entered on the 12th day

of December, 1945. Petition for rehearing was filed on the

10th day of January, 1946. The final order, denying re-

hearing, was entered on the 5th day of February, 1946.

(R. 165.) The order staying the mandate for sixty days

was entered on the 8th day of February, 1946. (R. 165.)

The jurisdiction of this Court is invoked under Section

240 (a) of the Judicial Code as amended by the Act of

February 13, 1925, (28 U. S. C. A., Section 347).

QUESTIONS PRESENTED.

The questions presented in this case are:

1. Whether the Circuit Court of Appeals properly con-

TREE REF POLO PE EO TE IE I OE LOT RIT NESS DH BHC ice .

Petition for Write of Certiorari 3

strued the fire insurance policy contracted and issued in

and under the laws of the State of West Virginia.

(a) The Statute of West Virginia prescribes a uniform

policy of fire insurance to be issued by fire insurance com-

panies, doing business in West Virginia, and expressly

prohibits the issuance of any policy of fire insurance in

any other form (see statute in Appendix to Brief with this

petition), and the form of policy thus prescribed has and

bears a provision rendering the policy absolutely void

unless the ownership or the interest of the insured is sole

and unconditional and in case of a building the insured

be the unconditional owner of the land on which the build-

ing is built, in fee simple, unless an agreement in writing

be attached to such policy, prescribing ‘‘the extent of the

application of insurance under the policy.” (See statute

in Appendix.)

(b) The building insured in the instant case was on

ground not owned by the named insured in fee simple, and

the interest of the named insured was other than uncon-

ditional and sole ownership. To prevent the policy, under

such circumstances, from being utterly void under the

statute, there was printed in the space indicated by the

statute and added to the policy at such space, as provided

by the statute, an agreement in writing, by apt and appro-

priate words, extending the insurance to all persons having

interest in the property.

(c) The words used were: ‘‘Assured The Board of Edu-

cation of the County of Raleigh as is now or may here-

after be constituted for account of whom it may concern,”

(Emphasis our own) which language has a well-defined

meaning, force and effect, and comprehends and indem-

nifies all persons having any interest in the subject of in-

a Se eer ee ee oi. ae Ses

4 Petition for Writ of Certiorari

surance, as construed and determined by this Court in

Hagan v. Scottish Union & National Insurance Company,

186 U. S. 423, 22 S. Ct. 862, 46 L. ed. 1229, and the Supreme

Court of West Virginia (substantially the same language),

in Murdock v. Insurance Company, 33 W. Va. 407, 10 S. E.

777, and many other cases adjudicated by this Court, which

cases the Cireuit Court of Appeals refused to apply in the

instant case.

2. Whether Section 7, of Article 4, of Chapter 33 of the

Official Code of West Virginia (Michie’s Code, Serial See-

tion 3366) and Section 8, of Article 4, of Chapter 33 of the

Official Code of West Virginia (Michie’s Code, Serial See-

tion 3367), is violated both in letter and spirit, if the policy

in controversy is to be construed as the Cireuit Court of

Appeals has construed it in the instant case.

3. Whether a policy of fire insurance contracted, issued

and delivered in West Virginia, insuring a building against

damage or destruction by fire, and the named assured is

not the fee simple owner of the land on which the building

stands, or the sole and unconditional owner of the building,

and in such circumstances, under the provisions of the

West Virginia Statute, such policy is so written that the

same may conform to the statute, bearing the stipulation

in writing, required by the statute, defining the extent of

the insurance, is to be so construed as to give such words,

defining the extent of the insurance, the technical and pre-

viously determined legal meaning attributed to them by

both the Supreme Court of the United States and the Su-

preme Court of West Virginia, or shall such stipulation

be ignored and by mere ipse dixit held to have been in-

tended to mean nothing more than the contract would have

meant had not such words been used.

Petition for Writ of Certiorari 5

4. Whether equitable principles will be invoked for the

proper distribution of funds payable as indemnity under

the terms of a matured fire insurance policy, where the

policy is issued, insuring real estate, i.e., a building, the

title to which is held by a tenant in possession, with re-

version to another person upon the termination of a par-

ticular use of the property by such tenant in possession,

and the policy bears the words ‘‘for account of whom it

may concern,’’ and such words were manifestly used to

define the extent of the insurance and describe the intended

assured, and the property is totally and completely de-

stroyed by fire and the tenant in possession ceases to use

the property for the intended purpose and abandons the

property and the remainderman or reversioner becomes

reinvested of his whole estate before the indemnity is paid.

5. Whether the indemnity, payable under an insurance

policy insuring a building against the hazard of fire and

the building is totally destroyed, stands in the place of the

building, when the possessory title to the building was in

the named assured, then in possession, but whose title is

dependent upon a particular use of the property, with

reversion to another upon cessation of such use, and im-

mediately upon the maturity of the policy, such tenant in

possession ceases to use the premises for the intended pur-

pose and abandons the same, and the whole estate therein

thereupon reverted to the remainderman. Will equity,

under such circumstances, reconvert the indemnity into

realty, to protect the interests of the different owners and

the different estates, where it is manifest from the lan-

guage used and the circumstances attending the issuance

of the policy, that indemnity for the whole title was con-

templated by the contracting parties?

6 Petition for Writ of Certiorart

STATUTES INVOLVED.

The pertinent statutes involved are Sections 7 and 8, of

Article 4, of Chapter 33 of the Official Code of West Vir-

ginia. They are reproduced in the Appendix to the Brief

accompanying this petition.

STATEMENT OF THE CASE.

On the 22nd day of December, 1944, Allemannia Fire In-

surance Company filed its bill of interpleader in the Dis-

trict Court of the United States for the Southern District

of West Virginia (R. 3) and process issued thereon (R. 9),

convening petitioner and The Board of Education of the

County of Raleigh, West Virginia, as a test case (R. 28-38),

to determine the conflicting claims of the petitioner and

The Board of Education of the County of Raleigh, West

Virginia, to the indemnity under certain fire insurance

policies issued by Allemannia Fire Insurance Company and

some forty-two other insurance companies, arising out of

the total destruction of a school building by fire, which was

covered and insured by said insurance companies. The con-

flicting claims to the proceeds of indemnity arise out of the

following circumstances :

1. On the 26th day of April, 1924, The Board of Educa-

tion of Slab Fork District in the County of Raleigh, pre-

decessor of The Board of Education of the County of

Raleigh, West Virginia, determined to establish a high

school in that magisterial district of the county, and to

secomplish said purpose submitted a bond election to the

voters of that political subdivision, by which election The

Board of Education of Slab Fork District in the County of

Raleigh was authorized to issue $130,000.00 of its school

bonds. Under the call for the election it was provided that

the school building would be located at or near the Village

of Winding Gulf. The officials of The Board met with the

officials of Winding Gulf Colliery Company, predecessor

Petition for Writ of Certiorari 7

of Winding Gulf Collieries, and they then and there had a

verbal agreement, after inspecting the premises and speci-

fications of the contemplatéd building, that such building

would be located upon lands of Winding Gulf Colliery

Company, to be used solely for public free school pur-

poses, and upon cessation of the use thereof, the building

was to revert to and become the property of the Winding

Gulf Colliery Company. This was a perfectly legal con-

tract under the laws of West Virginia. Board of Educa-

tion v. Harvey, 70 W. Va. 480, 74 S. E. 507.

2. This parol agreement was carried into a written

agreement by a deed dated the 23rd day of August, 1924,

(R. 18) in which deed the previous parol agreement was

expressed in the following language:

“It is further distinctly understood and agreed

by and between the parties hereto as a part of the

consideration for this conveyance, that the property

hereby conveyed is for public free school purposes

only and for no other purpose or purposes and that

the same and no part thereof shall at any time be used

for any other purpose or purposes whatsoever and

that whenever the said property hereby conveyed

shall cease to be used for public free school purposes,

the same and every part hereof shall thereupon ipso

facto revert to and become reinvested in, the said

party of the first part, its successors or assigns, in

fee simple, with like force and to the same effect as

if this conveyance had never been made.”’

3. By legislative enactment, (R. 133) respondent, The

Board of Education of the County of Raleigh, West Vir-

ginia, succeeded to all the rights, properties and interests

of The Board of Education of Slab Fork District in the

County of Raleigh. Winding Gulf Collieries, by deed dated

Ss

8 Petition for Writ of Certiorari

the 15th day of August, 1929, succeeded to the rights of

Winding Gulf Colliery Company. (R. 124.)

4. The Board of Education of Slab Fork District en-

tered into the possession of the property conveyed by the

deed aforesaid and built and constructed thereon a large

and commodious high school building, and it, and its sue-

cessor, occupied and used the premises for such public

free school purposes for about twenty years.

5. On the first day of December, 1943, The Board of

Education of the County of Raleigh, West Virginia, pur-

chased broad, comprehensive, blanket insurance policies,

all in substantially the same form, which were issued by

forty-three insurance companies, for various principal

amounts, the total amount in the instant policy was $142,-

000.00. (R. 24.) The coverage was, *‘on all buildings ana

structures of every description, * * * occupied for educa-

tional purposes and purposes necessary Or incidental

thereto, while located on premises owned, occupied, leased

or used by the assured in Raleigh County, West Virginia.’’

This policy was written on the standard form of fire insur-

ance policy prescribed by the Statute of West Virginia

(see photostatic policy with the transcript), but with pro-

visions, riders and stipulations, giving the description of

the property covered as above stated, and naming ‘‘The

Board of Education of the County of Raleigh and legal

representatives’’ as the named assured. In as much as the

named assured was not the owner in fee of the lands on

which many of the buildings stood, of which the instant

case is one, it was necessary, under the West Virginia

Statute, to insert special provisions to make the policy

conform to the West Virginia Statute, otherwise the pol-

icy would be void. To accomplish this purpose and define

‘“the extent and application of the imsurance under the

ARTIS LI EE REE LOY Be CNP age REN LE PENS EM EINE EE SOE ST a a peer ——

Petition for Writ of Certiorari 9

policy,’’ as required by the statute under such cireum-

stances, and to further describe the estate and interests

intended to be insured, and following the first paragraph

naming ‘‘The Board of Education of the County of Raleigh

and legal representatives’? as the named assured, a rider

or insertion was made in this language:

“ASSURED

THE BOARD OF EDUCATION OF THE

COUNTY OF RALEIGH

As is now or may hereafter be constituted

For account of whom it may concern

Loss, if any, under this policy shall be adjusted with

and held payable to the Board of Edueation of the

County of Raleigh.’’

6. On the 5th day of January, 1944, the school build-

ing was totally destroyed by fire and The Board of Edu-

cation immediately ceased to use the premises for public

free school purposes, and abandoned the same and the

whole title thereupon reverted to petitioner, as contem-

plated by the intent, spirit and meaning of the deed above

referred to. The indemnity payable under the insurance

policies has been ascertained and adjusted. The amount

payable by the insurance companies on account of the total

destruction of the school building, has been ascertained

and fixed at $67,201.02. The amount for which Allemannia

Fire Insurance Company is liable is $4,771.27. The Allo-

mannia Fire Insurance Company has deposited the money

into the registry of the District Court of the United States

for the Southern District of West Virginia, and filed its

bill of interpleader and enjoined the claimants from pros-

ecuting their respective claims to the insurance indemnity.

St ee Pa tea eee Sit ea are a een eh ee a ee 4 VENT

10 Petition for Writ of Certiorari

The District Court awarded the indemnity to petitioner.

The Circuit Court of Appeals reversed the District Court

and awarded the indemnity to The Board of Education of

the County of Raleigh.

Petition for Writ of Certiorari 11

SPECIFICATIONS OF ERRORS TO BE URGED.

The Circuit Court of Appeals erred:

1. In reversing the decree of the District Court of the

United States for the Southern District of West Virginia.

(a) In refusing to give to the language, ‘‘for account of

whom it may concern,’’ as used in this policy, their pre-

viously determined legal significance and meaning, as es-

tablished by the Supreme Court of the United States. They

are technical words with universal recognized legal mean-

ing, and apply not only to all persons, but to every specie

of interest and property in the subject insured.

(b) In refusing to follow the Supreme Court of the

United States and the Supreme Court of the States of West

Virginia, as to the legal and technical meaning to the words,

‘‘for account of whom it may concern,’’ when used in an

insurance policy describing the insured and extent of the

insurance and the District Court having rightfully fol-

lowed that holding and construed the policy as indicated

by the Supreme Court of the United States and the Su-

preme Court of the State of West Virginia, it was the

duty of the Cireuit Court of Appeals to follow and apply

and enforce the language used as indicated by such pre-

vious decisions.

(c) In the holding, by the Cireuit Court of Appeals, that

the language used in the instant policy, under the cir-

cumstances, did not disclose an intention to cover the re-

versionary interest of this petitioner. Such holding is arbi-

trary and without facts on which to sustain or support it,

especially in the light of the fact that the policy was drawn

with such meticulous care by the adoption and use of such

well recognized language, reinforced by the perfectly pat-

ent purpose of conforming to the statute to make the policy

valid; and without which the policy would have been invalid;

12 Petition for Writ of Certiorari

(1) by inserting in the policy a broad, general, description

of the property intended to be covered, i.e., ‘‘all buildings

and structures of every description * * * occupied for

educational purposes * * * while located on premises owned,

occupied, leased or used by the assured in Raleigh County,

West Virginia; and (2) by inserting therein a stipulation

disclosing ‘‘the extent of the application of insurance under

the policy, i.e., ‘‘for account of whom it may concern,’ and

the use of other apt and appropriate words, for the pur-

pose of complying with the sole ownership provision of the

standard form of policy prescribed by the statute.

(d) In failure to take cognizance of the Statutes of West

Virginia, (Section 7, of Article 4, of Chapter 33, and See-

tion 8, of Article 4, of Chapter 33 of the Official Code of

West Virginia, Michie’s Code, Serial Sections 3366-3367—

See Appendix) which are a part of the contract of insur-

ance in the instant case, and the decision of the Circuit

Court of Appeals reads the same out of the contract and

fails to give the statutes their full force and effect accord-

ing to their true intent, spirit and meaning.

2. The words, ‘‘for account of whom it may concern,’’

used in defining the extent of the insurance and describ-

ing the intended assured, in the instant fire insurance pol-

icy, together with other clauses in the policy denying the

insurer the defense arising out of limitation upon the in-

terest or title of the named assured, insures the whole fee

title in the property covered and converts the insurance

policy into a covenant real running with the land, and under

such policy principles similar to those controlling the in-

surance of property held in trust govern funds payable

upon the maturity of such policy. Such policy will not be

confined to the interest of the named assured, but covers

the interest of all owners and may be adopted by any

Petition for Writ of Certiorari 13

person having an insurable interest in the subject of insur-

ance, even after the loss.

3. Where a policy of insurance such as is involved in

the instant case, exists, and the title is held by different

persons of diverse interests, and the subject of insurance

is real estate, and the policy matures by the occurrence of

the event against which the policy was issued to indemnify,

and the real estate is thus involuntarily converted into

money, equity will reconvert the same into realty to pro-

tect the interests of the different owners and the different

estates, and the money will stand in the place of the land

and be held by each owner as of their respective estates

in the real estate.

REASONS FOR GRANTING THE WRIT.

The Circuit Court of Appeals, in reversing the decision

of the District Court, has failed to give to the insurance

policy in controversy the well recognized and almost uni-

versal construction attributed to the language used, to

express the intention of the contracting parties, and has

construed the contract contrary to the applicable decisions

of this Court, and has departed from the accepted and

usual course of judicial proceedings.

The words and language involved in the policy of insur- .

ance, and more specifically pointed out in this petition,

which were erroneously construed by the Cireuit Court of

Appeals, are of such ancient and universal origin that the

same, from such usage in the insurance business, have be-

come a rule of property, by which the rights of contract-

ing parties have been fixed and established with previous

certainty, by uniform line of decisions, especially since the

decision of this Court in the case of Hagan v. Scottish Union

& National Insurance Company, 186 U.S. 423, 46 L. ed. 1229.

14 Petition for Writ of Certiorart

The decision of the Circuit Court of Appeals, if per-

mitted to remain unreversed, will render such rules gov-

erning the property rights of contracting parties uncer-

tain and indefinite. Contracts of fire insurance are so essen-

tial to modern commerce and enterprise that the forms of

such contracts, from the very nature of the undertaking,

should be established with such certainty that the contract-

ing parties would feel a sense of security in the validity of

their contracts, without waiting the event of the catastrophe

contemplated, to wager their rights on matters of construc-

tion of language of doubtful and uncertain meaning.

The Statutes of West Virginia, Section 7, of Article 4,

of Chapter 33 of the Official Code of West Virginia,

(Michie’s Serial Section 3366) and Section 8, of Article 4,

of Chapter 33 of the Official Code of West Virginia,

(Michie’s Serial Section 3367), appearing in the Appendix

of the Brief accompanying this petition, became and were

a part of the insurance policy in contgoversy, and the de-

cision of the Cireuit Court of Appeals ignores and fails

to give these statutes the full force and effect to which the

same are entitled.

Petition for Writ of Certiorari 15

PRAYER.

WHEREFORE, your petitioner respectfully prays that

a writ of certiorari be issued out of and under the seal of

this Court directed to the United States Circuit Court of

Appeals for the Fourth Circuit, sitting at Richmond, Vir-

ginia, commanding that Court to certify to and send to this

Court on a day certain to be therein named, a full and

complete transcript of the record and all proceedings had

in this ease, numbered and entitled in its docket 5418, to

the end that this case may be reviewed and determined by

this Court; that the decree of the United States Circuit

Court of Appeals rendered herein on the 12th day of De-

cember, 1945, and its final order denying rehearing, ren-

dered on the 5th day of February, 1946, may be reversed

by this Honorable Court, and that the judgment and de-

cree of the District Court of the United States for the

Southern District of West Virginia, entered on the 10th

day of May, 1945, be reinstated and held to be firm and

valid; and that your petitioner may have such other and

further relief in the premises as may seem just and proper,

and your petitioner will ever pray, ete.

WINDING GULF COLLIERIKES,

Petitioner.

By J. W. Maxwe.t,

Attorney for Petitioner.

Fioyp M. Sayre,

Beckley, West Virginia.

J. W. MaxweE ..,

Beckley, West Virginia.

G. Berk Lyneu,

Beckley, West Virginia.