17 Mo. 247 | Mo. | 1852
delivered the opinion of the court.
This was an action upon a fire policy covering a dwelling house and furniture, begun by the appellants against the respondent. The insurance was effected by Jeanettine Clementine, who afterwards intermarried with the appellant, August Loehner.
Among other defences, the answer sets up that the written application for insurance, which was made a part of the policy, did not truly state the incumbrances which covered the insured premises, nor did it fully describe the character of the house sought to be insured. That there was a deed of trust upon the house and lot at the time of the application for insurance, which was not mentioned; and that the building, though represented as a dwelling house, was used as a bawdy house and a dram shop.
The charter of the company provided, that the “insurance shall be made, in all cases, upon the representation of the assured contained in his application therefor and signed by him or his attorney, which application shall, in fairness and good faith, state all the material circumstances within his knowledge which may affect the risk.” The thirteenth section of the charter also provides, that “if the assured have alease estate on the buildings insured, or if the premises be incumbered, the policy shall be void unless the true title of the assured and the incumbrances be expressed thereon.” By express words the application for insurance was made a part of the policy. In this paper is the following enquiry : What is the title and whether incumbered by mortgage or otherwise, and to what amount? The answer to this interrogatory is : “on leased ground, six years to run.” When the application was made for insurance, there was a deed of trust upon the house and lot for five or six hundred dollars. The house was insured for fifteen hundred dollars, two-thirds of its appraised value. On the trial, evidence was offered to prove that the existence of this deed of trust was made known to the agent of the compa
12. The defendant has not shown that there was any insurrection of the citizens at the time of the destruction of the property mentioned .in the policy, and that is, therefore, no defence.
13. It is not necessary that the furniture and piano should have been actually in the house when they were destroyed by fire, but if in the fire they were removed by a mob to the yard and burnt, the loss- is still secured by the policy.
15. The word appurtenances in the deed of trust aforesaid, does not convey the buildings upon the ground in question, nor make an incumbrance, within the meaning of the policy.
16. But a conveyance of the lot on which the building was situated, was a conveyance of the building and an incumbrance within the meaning of the policy.
17. The defendant here has shown no compliance with the ' requirements of the policy in regard to the assessments and notice thereof to the plaintiff, Jeanettine.
And the court refused the following, asked by the plaintiff:
1. The fact that the plaintiff sold wines at the house insured, after the execution of the policy, is no violation or breach of the warranties of the policy.
2. If the jury believe from the evidence, that the policy makes no distinction in the rate of premium between a dwelling house and a bawdy house, and none between a dwelling house where wines are sold and where they are not, neither being classed in the policy as more hazardous than the other, the jury will find for the plaintiffs, so far as such objections are concerned.
3. Unless the jury believe from the evidence, that the plaintiff, Jeanettine, agreed in the policy or was forbidden by it to sell wines at the house insured, it is no breach of the same, and cannot prevent the recovery of the plaintiffs.
4. The deed of trust offered in evidence conveys the land or ground on which the buildings insured are situated, and if the jury believe from the evidence that. she duly paid lease on the same, the deed is void as a conveyance of the lease.
5. The household furniture and piano are not insured by the terms of the policy in any particular house ; if, therefore, the jury believe from the evidence that the household furniture and piano mentioned in the policy and application, were destroyed by fire, they will find, as to such furniture and piano, for the plaintiffs, notwithstanding they may also believe from the evi-.
6. The deed of trust offered in evidence by the defendant, constitutes no incumbrance on the property mentioned in the policy.
7. A bawdy house may be a dwelling house, and if the jury believe from the evidence that the house insured in the policy was a dwelling house, they will find for the plaintiffs, although they may also believe from the evidence that it was a bawdy house.
8. The deed of trust offered in evidence by the defendant, to Alexander Hare, is no incumbrance upon the leasehold interest of the plaintiff or the buildings mentioned in the policy, and no breach of the warranty in the policy in regard to incum-brances.
9. An insurrection of the citizens is a violent movement against the government or civil authority, on the part of the citizens.
10. A mere mob, whose only purpose is to destroy the premises and property of the plaintiff, Jeanettine, and drive her away, is not an insurrection of the citizens, within the meaning of the policy.
11. The piano mentioned in the policy is not insured in any particular house ; if, therefore, the jury believe from the evidence that it was destroyed by fire, although in a house which was used as a bawdy house, and in which wines are sold, they will find for plaintiffs as to such piano.
The following instructions were given for the defendant:
1. If the jury believe from the evidence that, at the time the application for insurance was made by the said Jeanettine Clementine, she had a leasehold estate, or any estate less than a fee simple in said land on which the buildings insured were erected, and that, at the time the policy sued on was issued, the said Clementine’s interest in said land was incumbered by deed of trust or otherwise, and that such incumbrance was not
4. The application of the said Jeanettine Clementine, and all the statements therein, are a part of the policy sued on, and are a warranty as to the matters therein stated, and any mistake or omission in the representation of the risk, whether wilful or accidental, if material to the risk insured, avoids the policy.
5. A warranty is in the nature of a condition precedent, and must be fulfilled by the insured before performance can be enforced against the insurer.
And the following were refused the defendant:
2. If the jury believe from the evidence that, at the time the application for insurance was made in this case, the said Jeanettine Clementine described the building insured, and containing the property insured, as a dwelling house, and it was so described in the written application for insurance, and that, in fact, the said Jeanettine, at the time of the loss of said prop-perty insured, kept in said premises a bawdy house or house of ill-fame, commonly known as a whore house, and that the risk of fire upon a bawdy house or whore house is greater than the risk of fire upon a dwelling house, then the jury will find for the defendant.
8. If the jury believe from the evidence that, at the time the application for insurance was made in this case, the said Jean-netine Clementine caused the building insured, and containing the property insured, to be described as a dwelling house in her written application for insurance, and that, in fact, the said Jeannetine, at the time of the loss of said property insured, kept in said premises a tippling house or place for the sale of wine or spirituous liquors, under a license therefor, then the jury will find for the defendant.
6. If the jury believe from the evidence that, at and before
7. If the jury believe from the-evidenee, that the insured did not truly describe the use and purpose for which her said house was occupied, in her written application, and that the said premises were occupied as a bawdy house, house of ill-fame or dram-shop, or whore house, by the insured and her servants and agents, then the jury will find for defendant.
The court gave the following instruction :
If the jury believe from the evidence, that the house described in the policy and application was not occupied as a dwelling house, but for other purposes, enhancing the risk by fire, then the plaintiffs cannot recover, and it is for the jury to determine whether there was a material risk concealed from the company in Jeannetine Clementine’s application for said insurance. They will take into consideration all the evidence with regard to the use and occupation of the house, and if they believe from the evidence, that there was a material concealment of the risk, they will find for the defendant.
The thirteenth section of the charter provides that, if the assured has a lease estate in the buildings insured, or, if the premises be incumbered, the policy shall be void, unless the true title of the assured and the incumbrances be expressed thereon. There is no question but that the buildings insured were a leasehold estate, and that there was an incumbrance on them at the date of the insurance. This incumbrance was not expressed in the application for insurance, which was made a part of the policy. The application contains an interrogatory, whose aim was to ascertain whether there was an incumbrance on the premises proposed to be insured, but no response is made to it; leaving room for the inference that none existed. The charter then made the policy void.
The other Judges concurring, the judgment will be reversed and the cause remanded.