| Kan. Ct. App. | Dec 3, 1901
Lead Opinion
This is a suit on a policy of insurance, covering a two-story brick building in the town of Higbee, Missouri. It was tried by the court below, jury being waived, and resulted in a judgment for plaintiff for $2,040 (which was the amount of the policy and interest), and defendant appealed.
I. The defense pleaded and relied on was that plaintiff misrepresented his interest in the property insured and that he was not the unconditional and sole owner — basing said defense on the following recitals and provisions of the policy:
The policy, in describing the property insured for Bradley, states it as “$1,750 on his two-story composition roof brick building,” situated on certain lots in Higbee, and “$250 on his counters, shelving,” etc., contained in said building. It was then further agreed by the terms of the policy that “this entire policy shall be void if the interest of the insured in the property be not truly stated herein.” And, further, that “this entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void... if the interest of the insured he other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.”
It is contended on the part of the defendant that the undisputed evidence shows that Bradley, the insured, was not, at the date of the policy, the absolute, unconditional, and sole owner of the building insured and that by the terms, therefore, of the contract the policy was void. And after a care
The testimony clearly, and without contradiction, establishes that at the time this insurance was effected and the policy was taken out in the name of plaintiff Bradley, he (Bradley), was not the sole owner of the property insured. At that time it belonged to a syndicate or combination of persons of whom Bradley was one. It is true he held the legal paper title, but there were others interested in the property and the plaintiff was the real owner of only a fractional interest. He held the record title merely to facilitate the transfer of such parts of the fifty-six acres of land as the syndicate had bought and which was held for speculative purposes and was to be platted into lots and sold from time to time which occasion offered. The nature of the deal is told in the testimony given by plaintiff Bradley. In addition to the statement that the syndicate who purchased the property was composed of Ben-ham, Rucker, Eoux, Evans, Adams and himself, he further testifies: that “when this property was purchased, there were fifty-six acres of land in connection with these lots (meaning the lots described in the policies) that was purchased on which this building was erected. This land was bought for the purpose of being cut up into lots and being sold. And on considering the matter it was found that it would be very inconvenient in selling the lots to get so many signatures to the deeds that it would necessitate, if all the parties had an interest in it, for all of them to sign the deeds that were made to the lots as they were sold. And so it was concluded to give me the money to buy the property with and to give me the whole right to handle and dispose of it as I thought best; that I should sell the lots and wind up the business at such time as I thought best and after I had closed it out I should give each party such interest in the profits or such portion of the land that was left, that is, to give each one an equal share in
Under the facts proved, it can not be successfully claimed that the insured, Bradley, had the sole ownership of the property covered by the policy. His associates were joint owners with him. He held the title in trust for the members of the syndicate. They were, in equity and in fact, each the owner of an undivided one-sixth of the property including the building insured and destroyed. These interests, too, were insurable in the name of each respective owner. Accordingly, then, under the provisions of the contract, the policy was void and plaintiff can not recover. The following, with other cases cited by defendant’s counsel, may be consulted. Hubbard v. Ins. Co., 57 Mo. App. 1" court="Mo. Ct. App." date_filed="1894-03-05" href="https://app.midpage.ai/document/hubbard-v-north-british--mercantile-insurance-8260680?utm_source=webapp" opinion_id="8260680">57 Mo. App. 1; Barnard v. Ins. Co., 27 Mo. App. 26" court="Mo. Ct. App." date_filed="1887-06-06" href="https://app.midpage.ai/document/barnard-v-national-fire-insurance-6615536?utm_source=webapp" opinion_id="6615536">27 Mo. App. 26; Mers v. Ins. Co., 68 Mo. 127" court="Mo." date_filed="1878-10-15" href="https://app.midpage.ai/document/mers-v-franklin-insurance-8006029?utm_source=webapp" opinion_id="8006029">68 Mo. 127; Baumgarten v. Guessfeld, 38 Mo. 36" court="Mo." date_filed="1866-03-15" href="https://app.midpage.ai/document/baumgartner-v-guessfeld-8001897?utm_source=webapp" opinion_id="8001897">38 Mo. 36.
It seems that the policy in suit was obtained by Denham from the defendant’s agents at Moberly, Missouri. Denham was the cashier of the Citizen’s Bank at Higbee and was one of the parties who joined Bradley in the land deal; and it is now suggested in plaintiff’s brief, that as Denham, at the time the policy was issued, understood the nature of Bradley’s interest and knew that he was not the sole owner of the property, the defendant company is charged with such knowledge and is to be deemed as having waived the condition of the policy as to Bradley’s sole ownership.
The judgment will be reversed and cause remanded.
Rehearing
MOTION FOR REHEARING.
This case being the same as to tbe facts and law as tbe case of J. J. Bradley v. Milwaukee Mechanics’ Insurance Company, 90 Mo. App. 349" court="Kan. Ct. App." date_filed="1901-12-02" href="https://app.midpage.ai/document/bradley-v-milwaukee-mechanics-insurance-6620127?utm_source=webapp" opinion_id="6620127">90 Mo. App. 349, it is determined by the opinion in that case. Motion for redocketing and rehearing overruled and mandate ordered.