191 N.W. 480 | N.D. | 1922
Lead Opinion
This is an appeal from a judgment of the district court of Morton county and from an order denying a motion for judgment non obstante, or for a new trial. The plaintiff had judgment in the. sum of $800. The action was upon a fire insurance policy to recover.
The granary was totally destroyed by fire. Certain issues of fact were submitted to the jury in the form of a special verdict. We find it unnecessary to set forth the special verdict. The jury found in it that the plaintiff did not sign the application with the intent to misrepresent the facts nor deceive the defendant. They also found that the value of the granary at the time of the application, and at the time of the loss was $800.
There is substantial evidence in the record to sustain the first of these findings. That question is, therefore, disposed of and Heeds no further consideration. We are further of the opinion that there is substantial evidence to sustain the second finding. It is not necessary, we think, to review the evidence in this respect. But if there were not a finding by the jury to the effect that the granary was worth $800, at the time of its destruction by fire, we think, plaintiff would have been entitled to recover $800, as that was the amount for which the granary was insured; and since it was wholly destroyed by fire, the amount stated in the policy must be taken conclusively to be the value of the granary.
Section 6623, Comp. Laws, 1913, provides: “Whenever any policy of’insurance shall be written to insure any real property in this state against loss by fire and that property insured shall be destroyed without fraud on the part of the insured or his assigns, the stated amount of the insurance written in such policy shall be taken conclusively ’to be-the true value of the property insured.”
It is not claimed nor contended here that the building was destroyed by any fraud on the part of the plaintiff. The jury determined that he made no false statements or representations in the applieátion, lienee,
The verdict is sufficient to support the judgment. We have examined all the assignments of error and conclude there are none that constitute reversible error. The judgment and order appealed from are affirmed. Respondent is entitled to his costs and disbursements on appeal.
Concurrence Opinion
(concurring). I concur in an affirmance. Under § 6624, Comp. Laws, 1913, the value of insured real property is fixed; in case of a total loss, the insurer is liable for the payment of the value so fixed; and he cannot assert as a defense that the property destroyed was or is of less value than that stated in the policy. In other words, under this statute (unless he was induced to overvalue the property in the policy as a result of fraudulent representations by the insured) the insurer, in case of a total loss, cannot avoid liability for the full amount stated in the policy by showing that the property was or is of less value that that stated. Wood, Ins. § 41; 26 C. J. pp. 354, 355; 14 R. C. L. pp. 1305, 1306.
Whether § 6624, supra precludes the insurer from asserting as a defense that he was induced to overvalue the property in the policy as a result of fraudulent representations on the part of the insured need not be determined in this case. The policy in suit was based upon a written application signed by the plaintiff. Such application contained a description of the premises to be insured and a statement of their value. The case was submitted to the jury for a special verdict. In response to specific questions in such verdict, the jury found that the plaintiff did not sign the application for insurance with any “intent to misrepresent the facts and deceive the defendant company.” Such finding has ample support in the evidence. ' ■
