Reithmueller v. Fire Ass'n

20 Mo. App. 246 | Mo. Ct. App. | 1886

Hall, J.

Under the clauses of the policy set out in the above statement, a failure on the part of the assured, if not to have had endorsed upon the policy, at least to-have stated to the defendant’s agent, her real interest in the property, if she was not the sole and unconditional owner thereof, was such a misrepresentation as to avoid the policy. May on Insurance, sect. 287; Wood on Insurance, sects. 86, 151.

Indeed, if the allegations of the answer, to prove which the court refused to permit defendant, be true, it is difficult for us to see what insurable interest the wife-had in the property. However this may be, it is certain that, if the husband owned the property as alleged in the answer, and as defendant offered to prove, the policy was void under'the said clause thereof.

There could not have been a waiver by defendant of the forfeiture of the policy by reason of the husband’s ownership of the property until that fact was known by defendant. Hence, in this case, under the evidence, there-could have been no such waiver.

The fact that the insured was a married woman, and that she is joined by her husband, who is alleged to be . the real owner of the property, in this action, is not material. That fact cuts no figure in this case.

It was not inconsistent to join the defence mentioned in this opinion with the defence that the assured set fire to the insured property. They might have both been true. The latter the jury found was not • true. The court should have permitted the jury to pass upon the former.

The judgment must be reversed for the refusal of the court to permit the defendant to prove that the husband owned the goods. The offer of defendant was to prove, as alleged in the answer, that the husband was the owner, the actual owner of the insured property. This must be understood. For it is upon the offer to prove the averment of actual ownership by the husband that we base this opinion. We do not mean to hold, and we do not hold, that proof that the husband had conveyed his property to his wife for the purpose of defrauding his creditors-would have been proof, of ownership by the husband. Under such proof the husband would not have been the owner. May on Insurance, sect. 287; Treadway v. Ins. Co., 29 Conn. 68.

Such is not this case. The offer was not of such proof. We base our opinion upon the offer actually made. The judgment is reversed and the cause is remanded.

All concur.