Craig v. United States Fidelity & Guaranty Co.

11 Cal.App.2d 644 (1936) ADALINE C. CRAIG, Appellant,

v.

UNITED STATES FIDELITY AND GUARANTY COMPANY (a Corporation), Respondent.

Civ. No. 10650. California Court of Appeals. Second Appellate District, Division Two.

February 7, 1936. Ernest N. Clark and William J. Claassen for Appellant.

Armand H. Blum for Respondent.

McComb, J., pro tem.

This is an appeal from a judgment in favor of defendant after a trial before a court without a jury.

The conceded facts are:

Plaintiff, acting through her duly authorized agent, applied to defendant for a burglary insurance policy, which was duly issued October 10, 1934. In answering item No. 13 in the application for insurance, reading, "No burglary, theft, or robbery insurance applied for or carried by assured has been declined or cancelled by any company within the last five years except as herein stated," the agent declared, "No exceptions." This statement was in fact false, because a policy of burglary insurance held by plaintiff had been cancelled on or about July 20, 1934, by the Aetna Insurance Company.

November 6, 1934, plaintiff's premises were burglarized. Thereafter, upon learning of the false statement, defendant cancelled its policy of burglary insurance with plaintiff. It is to recover for this loss that the suit was commenced.

[1] The sole question necessary for us to determine is: Does a false statement in an application for burglary insurance, that prior burglary insurance carried by plaintiff has not been cancelled within the preceding five years, constitute a valid defense to a suit for recovery on the policy?

[2] It is well settled that, when a statement in the application for insurance is declared by the policy to be a warranty and the insured declares the statement is absolutely true, the falsity of such statement voids the policy ab initio (Wolverine Brass Works v. Pacific Coast Casualty Co. of [646]