Roberts v. Ætna Insurance Co.

The Court : The policy contained a covenant: “Any false representation by the insured, etc., or any omission to make known every fact, etc., or any misrepresentation whatever, shall render the policy void.”

In his “application” the insured, plaintiff, “hereby covenants and agrees that the foregoing (answers to questions) constitute a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, and value of the property to be insured, so far as the same are known to the applicant, and the same is hereby made a condition of the insurance and a warranty on the part of the insured.” The application contains the question and answer, “10. Is there any incendiary danger apprehended or threatened? Ho.” The demurrer to defendant’s answer (the answer setting forth that the reply to question 10 “ was false and fraudulent at the time of making it, in this, that incendiary danger was then apprehended by the said James M. Coburn, as he then well knew, and he, the said James M. Coburn, did. in the aforesaid answer, falsely and fraudulently represent to the defendant that such danger was not apprehended, and he so represented with intention to deceive and defraud the defendant”), was properly overruled. When the policy refers [86]to the. application, and makes it part of the policy, any breach of the conditions or representations which are warranties, avoids it.

Though a circumstance in itself of trifling import, we are not prepared to say that the testimony of the witness Brunn that the premises were partly burned “last summer,” in the absence of the assignor of plaintiff, in no degree tended to show that he had apprehension of incendiarism.

The policy and application were set forth in the complaint and the defendant in his answer alleged a fact which, if true, constituted breach of a warranty. The instruction complained of was not erroneous.

Judgment and order affirmed.