Hawley v. LiverPool

McFarland, J. This is an appeal by defendant, an insurance company, from a judgment recovered by plaintiff upon a fire insurance policy made by defendant to plaintiff, and from an order denying a new trial. There are only two points made by appellant which require notice.

The policy provided that it should be void “ if the insured had concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning said insurance or the subject thereof.” In the written application for the policy appears the following question and answer: “ Has any company canceled or refused a policy on the property? No.” This answer was not true, as another company had canceled a policy on the property; and appellant contends that the falsity of the •answer vitiated the policy. The application was made by an agent of respondent, who testified that the question was never asked him, nor answered by him; and ■that he knew of the cancellation of a certain policy, and would have told of it if he had been asked. But waiving that matter, the fact was that the canceled policy [654]was one issued and canceled by the Alta Fire Insurance Company; and that “ the reason of the policy being canceled was that the Alta Fire Insurance Company was retiring from business, and they wished to clear up every thing.” The cancellation of the Alta policy, therefore, was for no reason that could have influenced the appellant in granting or refusing the policy sued on; and the alleged misrepresentation was in no sense “ material.”

It is also contended that the plaintiff was not, at the time of the issuance of the policy, the owner of the land on which the insured buildings stood, and that therefore she cannot recover, because the policy provides that it shall be void if the interest of the insured in the property was other than that of sole and unconditional ownership, and “if the subject of insurance be a building on ground not owned by the insured in fee simple.” We do not think the position tenable. The facts on this point are that, for many years prior to the issuance of the policy, respondent had been the owner in fee and in possession of the land; that she was then in possession of it; and that she was then also the owner in fee, ■ unless a change in the title had been effected by certain transactions which she had with one T. Heeds, about a year before the making of the policy. Heeds had held mortgages on the land executed by respondent; and, as they were about to outlaw, he had brought a suit to foreclose them. The suit was brought because the time to sue was about to expire, and because, as Needs testified, “it was in the winter-time and we could not get any letters to her”; and not because he wanted to harass respondent.