Finlon v. National Union Fire Ins.

| Or. | May 27, 1913

Mr. Justice Burnett

delivered the opinion of the court.

In support of the traversed allegation of the complaint about Sullivan’s ownership of the property the plaintiff offered a writing executed and delivered to the' insured by the "Whitney Contracting Company, whereby it appeared that that company had leased to Sullivan, the insured, the property upon which the building was situated, giving him the option of purchasing the same by making certain payments. There was some testimony that Sullivan had made default in some of the payments, which were to be considered as rent of the premises unless the option to purchase was exercised, but that the contracting company had afterward extended the time for making them. This contract and the oral testimony mentioned constituted all the evidence of title in the insured to the ground upon which the building stood.

At the close of the plaintiff’s case the defendant moved for a judgment of nonsuit in its favor, among other reasons, because the evidence produced was insufficient to authorize the jury to find a verdict for the plaintiff. The defendant predicates error upon the ruling of the court denying that motion. Section 4666, L. O. L., provides: “On and after the first day "of October, 1907, no fire insurance company, corporation, or association, their officers or agents, shall make, issue, use, or deliver for use any fire insurance policy, or renewal of any fire policy on property in this state, other than as shall conform to the following conditions, which conditions shall be contained upon page two of snch policy of insurance and which shall form a portion of the contract between such insurer and insured, and which shall read as follows: * * This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void * * if the interests of the insured be 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. * * ”

The policy in question was issued December 10,1907, after the act quoted went into operation. The lease, with the lessee’s option to purchase, does not in any sense of the word vest him with fee simple title to the land on which the insured building stood. There being no agreement to the contrary indorsed upon the policy or added thereto as required by the statute, that instrument was shown to be void, making plaintiff’s case amenable to the objection urged by the motion for nonsuit. In this respect, if in no other, the plaintiff failed to prove a case sufficient to be submitted to the jury under the allegations of his complaint. Other questions were suggested by the argument and brief, but we deem it unnecessary to consider them.

The judgment of the court below is reversed, with directions to enter a judgment of nonsuit as prayed for by the motion of the defendant. Reversed.