1 S.D. 342 | S.D. | 1890
This is an action instituted by the plaintiff against the defendant insurance company, on a policy of insur: anee for Mss sustained in the destruction by fire of his buildings, machinery, and household goods. The policy was issued upon a written application made by the plaintiff. The defense is based upon fraud or attempted fraud in falsely swearing to certain statements or facts made in the application, which it is alleged were material to be known to the insurer at the time the policy was issued, A trial was had upon the issues before a jury, and a verdict rendered in favor of plaintiff, new trial denied, judgment rendered, and appeal taken from said judgment. The question in relation to the regularity of the appeal will be considered as waived, as respondent did not
“I, James McNamara, of Mitchell P. 0., Davison county, Dakota, hereby make application to the Dakota Pire & Marine Insurance Company, of Mitchell, Dakota, for insurance against loss or damage by fire or lightning, to the amount of $1,217, .and by tornadoes, cyclones or wind storms, to the amount of $1,217, for the term of three years from the 18th day of February, 1888, on the property, as below specified, described, valued and located by me, now in my possession, and of which I am the sole and undisputed owner, viz.: [Then follows description of the property insured. ] All to be occupied by assured for private dwelling and farm purposes only. (1) Is dwelling completed? Yes. No. of rooms? -. (2) How many plastered? Papered. (3) Is it plastered inside? No. Outside? No. (4) Are there blinds to all the windows? No. (5) Material of chimneys, full particulars? Roof cap. (6) Do any stovepipes pass through roof? No. Or partitions? No. Or sides of building? No. (7) How much land is embraced in the farm upon which the property is situated? 160 acres. (8) How many acres now under cultivation? 40. (9) What is it worth per acre? $10. (10) Have you deed for same?, or what is the nature of your title? Pre-emption. (11) Is it mortgaged or otherwise incumbered? No. (13) Is your personal property, herein described, mortgaged or otherwise in cumbered? . Yes. Amount? $350, * * * (16) Have you any fears of incendiafism? No. (17) Is there other fire insurance on the property? No.
‘ T hereby agree that if stovepipe or metal chimney is used there shall be a clear space of at least four inches maintained between any wood-work and said stovepipe or chimney, (except where metal ventilator is used through which such pipe or chimney passes;) otherwise no claim will be made for any loss*345 by fire under any policy that may be issued hereon. In case of loss originating from prairie fire, in the absence of a good and sufficient fire guard at least seventy-five feet wide around the property, or from use of steam engine or furnace on premises, without special permit therefor, in writing signed by the secre tary, I hereby agree that no claim for loss shall be made. I agree to keep said premises in good repair. The company shall not be bound by any act done, or a statement made to or by any agent which is not contained in this my application, and the statements above made and answers to questions above given, whether written by me or not, will be assumed as my act — are true — and a warranty on my part, and are the basis upon which I ask insurance by the Dakota Fire & Marine Insurance Company on the property herein set forth, and the policy issued hereon is made a part hereof. It is hereby expressly stipulated and agreed by and between the parties hereto that, if a loss occurs while the note given for the premium is past duo and unpaid, the company is not liable. There are no exposures but farm outhouses within 100 feet, except as follows: * * * Jambs McNamara, Applicant. Signed and delivered in presence of Geo. A. Silsby.”
Taking up the alleged breaches of warranty in their order, the first refers to the amount of the incumbrance on the property. The evidence shows that the incumbrance on the property was as follows: To Ira E. Cook, $255; to F. Weller, two notes, one for $18.40, and one for $20, (the first had all been paid but $1.50;) Plankinton Mutual Relief Association, $13.50; and one to Warder, Bushnell & Co. for $90, — amounting in the aggregate to the sum of $380. The plaintiff denies in substance his liability on the note for $13.50, given to the Plankinton Mutual Relief Association. Taking this from the aggregate amount it leaves $366 as the total of his incumbrance on the property, without accrued interest of $24.13, which, if added to it, would make the amount of incumbfance $390.13. In the application the plaintiff stated the amount to be $350, a variation of $40.13 between the amount stated in the application and the actual amount of the incumbrance. Was this of such ma
As to the representations about the dwelling house, the testimony showed that a wing attached to the house was built of frame, and was also sodded up upon three sides. In this room the plaintiff slept. The statement showed that the building was a frame, shingle roof building. When the sods were placed around this portion of the house the testimony does not disclose. At the time the application was made, the representations in this particular may 'have been literally true. If not, it is very hard to see how the character of a frame house can be materially changed by placing sods around three of its sides. This practice is a very common one in our prairie houses, and is a cheap and effective protection against the iuclemency of the winter. The material is non-combustible, and could, under no circumstances, have endangered the house, so far as fire was concerned, but rather it rendered that part of the building more safe from it. This statement was not a misdescription that could in any way affect the validity of the policy.
The next alleged breach of warranty was in regard to the number of acres broken upon the quarter section of land upon which the house stood. The question asked in the applcation is, “How many acres now under cultivation?” Answer, “40.” The question preceding in the application w"as: “How much land is embraced in the farm upon which the property is situated?” Answer, “160 acres.” By reference to the policy, it will be seen that the property insured was a “dwelling house,” “household furniture,” “a barn,” “grain in granary/’ “hay in barn and other buildings,” “horses and mules, while on premises,” “cattle and colts,” etc., “on reapers, mowers,” etc., “on wagons, buggies,” “on violin,” “on machine house, wagon shed,” all situated on the S. E. £, section 24, township 104, range 60, Davison county, Dak. The question asked had ref