Pedrotti v. American Nat. Fire Ins. Co., Etc.

CASHIN, J.

The above actions were by stipulation tried together and appeals were taken by the respective defendants from the judgments entered therein. After the appeals were taken Alex Shevits, who will be hereinafter referred to as the plaintiff, died, and the executors of his

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last will and testament were substituted as parties respondent.

The action against appellant American National Fire Insurance Company was upon three policies of insurance aggregating $1,950, which became effective on April 1 and November 22, 1922, and May 1, 1923, respectively; that against appellant Columbian National Fire Insurance Company being upon a policy of $1,000, which became effective on December 13, 1923. The policies insured plaintiff against loss by fire on a certain dwelling-house situated in San Rafael, and contained the following provisions:

“Matters Avoiding Policy.—This entire policy shall be void ...(b) in ease of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after loss. . . . Unless otherwise prescribed by agreement endorsed hereon or added hereto this entire policy shall be void (b) if the interest of the assured be other than unconditional and sole ownership.

“Matters Suspending Insurance.—Unless otherwise provided by agreement endorsed hereon or added hereto this company shall not be liable for loss or damage occurring . . . (g) while the interest, title to or possession of the subject of insurance is changed excepting ... (3) a change in occupancy of building without material increase of hazard.”

On December 31, 1923, the dwelling-house was destroyed by fire, whereupon the assured furnished the insurers with proofs of loss in which the sum of $5,858.91 was stated as the value of the building. The defendants denied liability, and as a defense to each cause of action alleged that the plaintiff, with the intent to defraud the insurers, swore falsely in the proofs of loss with respect to the value of the property, and that his interest therein at the time of the fire was other than unconditional and sole ownership. It was also alleged by American National Fire Insurance Company as a defense to recovery upon the policies which took effect on April 1 and November 22, 1922, that the loss occurred while the plaintiff’s interest in, title to and possession of the subject of the insurance was changed, and that such change was without its consent. As a further defense to the policies which became effective on May 1 and December 13, 1923, the respective insurers al