Pacific Capital, Inc. v. Allied American Underwriters

CONREY, P. J.

The defendants issued to plaintiff’s assignor, Kingman Manufacturing Company, a fire insur

[75]

anee policy on property described therein “while contained in, on or about the premises owned, leased or occupied by the assured, situate; #2000 Bast 52nd Street, Vernon, California”. Under the heading of “exceptions” in said policy, were exceptions in which it was provided that the insurance did not cover pig iron, cast iron, and some other specified articles. While this policy was in force the building and contents were destroyed by fire, and this action followed a refusal of defendants to pay and satisfy the claim of loss. Judgment having been entered in favor of plaintiff, the defendants appeal therefrom.

The argument in support of the appeal raises only two points. These are that the court erred in failing to find on two special defenses pleaded by the defendant; and that the plaintiff is not entitled to recover in any event, because false swearing on the part of the insured voided the entire policy. The “second special defense” rests upon the terms of the policy (Rep. Trans., p. 70), which provide “that this entire policy shall be void ... 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 a loss”. Defendants alleged that subsequent to the fire the Kingman Manufacturing Company through its president presented to the duly authorized representative of defendants a proof of loss stating that said manufacturing company was the sole owner of all property destroyed by the fire, and for which indemnity was claimed, except the land upon which said property was situated; that said statement was false and fraudulent, etc., and was made with intent to mislead and defraud the defendants, and that the building for which indemnity was claimed was not owned by said Kingman Manufacturing Company either at the time of the execution of the policy, or at the date of the fire; and that there was no agreement between said parties, excepting from said policy the provisions thereof requiring that if the interest of the assured in property covered by said policy be other than unconditional and sole ownership, that the entire policy should be void, etc. That by reason of said false and fraudulent statement, etc., the policy of insurance is null and void, etc.