Sharp v. Scottish Union & National Insurance

VAN DYKE, J.

This is an action on a policy of insurance against fire. Verdict and judgment went for the plaintiff, and the appeal is taken from the judgment and from an order denying defendant’s motion for a new trial. The name of the insured mentioned in the policy was Archie McBride, and the dwelling-house and property insured, it appears, was at the time owned by said Archie McBride and his wife, Edith McBride, jointly, and it is contended by the appellant that the judgment should be reversed on the ground that there can be no recovery in this case, inasmuch as the policy contains a clause to the effect that if the interest of the insured in the property insured be other than unconditional and sole ownership the policy shall be void. Such provisions

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are usual in policies of insurance against fire, and are inserted, of course, for the protection of the insurer, on the theory doubtless that one who owns property will be more likely to exercise care in its protection than one who has none or but a small interest in it. But insurance policies, like all other contracts, should be considered as a whole, and the different parts thereof read together. It is provided in the policy under consideration: “This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject-matter thereof; or if the interest of the insured in the property be not truly stated therein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject-matter thereof, whether before or after loss.” In this case no fraud, false swearing, concealment, or misrepresentation is suggested. The policy was written by the agent of the defendant company, and he testifies: “When I wrote this policy my office was here in Eureka, and I wrote the policy there, and Mr. McBride at that time resided on the property about twenty-six or thirty miles away from Eureka. Mr. McBride was not present when the policy was written, and I didn’t know that Mrs. McBride owned an undivided half of the property. I did not say anything to Mr. McBride about his title to the property, and did not tell him what kind of a policy I was going to write, nor anything about the conditions that were to be in the policy.” A Mr. Noe, son of the mortgagee plaintiff, it seems, transacted the business with the agent of defendant, and prepared the mortgage clause which was inserted in the policy by said agent. He says: “I had no conversation with Mr. Dickson about the title or character of the property. He fixed the amount of the insurance. He brought the policy to my office, and I kept it until after the fire, as the representative of the mortgagee.” There was no written application for the policy upon the part of McBride, nor did he make any representations or statements with reference to the ownership of the property, but the agent in preparing the policy, it seems, acted upon his own information in the premises. The Company received premium on the whole of the value of the property, whereas only a portion—to wit, the house and