Menk v. Home Insurance

California Supreme Court Apr 30, 1888 No. No. 9890Published

Before: Temple

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Holding. An insurance company cannot avoid a policy based on defective statements or misrepresentations in an application if its agent, with full knowledge of the facts, prepared the application and accepted the premium.

Issues

Whether an insurance company is bound by an application prepared by its agent who had full knowledge of the facts despite misstatements therein.
Whether the description of insured property in a policy includes items referenced in the application but omitted from the policy text.
Whether the admission of evidence regarding property not covered by the policy constitutes reversible error.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The tendency of the decisions is plainly to hold all those conditions waived which, to the knowledge of the agent, would make the policy void as soon as delivered.”

“The application was expressly referred to in aid of the description. There can be no doubt that the cellar was included in the policy.”

“nor would misstatements be fatal to the claim of plaintiff which the agent well knew to be false when he made out the application, received the money of the applicant, and issued the policy.”

Synopsis

Fire Insurance—Application—Occupation op Insured Premises. —An application for a policy of fire insurance stated, with reference to the occupation of the premises, that the first story was occupied by “applicant as a brewery,” and the second story “as a lodging-honse and family residence.” The application further stated that the second story was occupied by a tenant. Held, there was no representation that the applicant personally resided on the premises.

Id. —Misstatements bt Agent op Insurer. —Misstatements contained in an application for a policy of fire insurance, which was made out by the agent of the insurer, cannot he taken advantage of for the purpose of defeating the policy, if the agent knew the statements to he false when he made out the application.

Id. —Evidence as to Property Destroyed at Fire. —In an action on a policy of fire insurance,- where the defense is made that the plaintiff himself set fire to the premises, evidence is admissible on behalf of the plaintiff that property belonging to him, other than that covered by the policy, was destroyed by the-fire.

Id.—Appidavit in Proop op Loss—Immaterial Error.—In such an action, the admission in evidence of an affidavit made by the plaintiff soon after the fire, in proof of the loss, is an immaterial error, when the plaintiff testifies to the same facts as those stated in the affidavit, and the court expressly limits the effect of the paper as evidence to showing that the affidavit had been made.

Finding—Insuppioienoy op Evidence—New Trial. —The sufficiency of the evidence to sustain afinding.will not be considered on appeal, unless the statement on motion for a new trial contains a specification of the particulars wherein the evidence is claimed to be insufficient.

The Court. This cause was heard and determined in Department. A rehearing was granted, and it comes before us again.

Upon further examination, we adhere to the former opinion filed, and the judgment and order appealed from are affirmed, for the reasons given in the opinion of Department One, filed August 30, 1887.

The following is the opinion above referred to:—

Temple, J. Suit was brought upon a policy of insurance issued by the defendant; and from the judgment rendered in the action against the defendant, and from an order denying defendant’s motion for a new trial, this appeal is taken.

The application and survey were expressly referred to and made part of the policy, and it was further stipulated that such application and survey should be considered a part of the contract and a warranty by the assured, and that any false representation by the assured of the condition, situation, or occupancy of the property, or any omission to make known any fact material to the risk, or any over-valuation, should render the policy void.

Among other defenses, it was claimed that there was an over-valuation of the property and a misrepresentation as to its value; that a portion of the premises was occupied by a tenant as a saloon for the sale of liquors, which fact was not mentioned in the application, which stated as to the occupancy of the premises: “ First story by applicant as a brewery; the second story as a lodging-house, and family residence in the rear.”

[52]It was also claimed on the trial, although there was no special plea of such defense, that the application contained a warranty in the above-quoted language that the applicant resided with his family on the premises, whereas, in fact, he did not reside there, but the premises were occupied by a tenant. In addition to the above language bearing upon this last point, the application in reply to the question, "Each story, how occupied?” has this: “Second story by tenant as a lodging-house.” It is plain that there is no representation that the applicant personally resided there. The rear was occupied as a residence by the tenant who had the lodging-house.

On the trial the plaintiff was permitted to testify, against the objection and exception of the defendant, that the application was in fact made out by an agent of defendant by the name of Burckhalter, and that the plaintiff did not know what representations it contained; and further, that the agent knew all about the premises, and the manner in which they were occupied, and their value. There was other testimony to the same effect. It is claimed that this was error, and the case of Menk v. Commercial Insurance Company of California, 70 Cal. 585, is relied upon as authority.

Menk v. Home Insurance

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