162 F. 447 | 4th Cir. | 1908
Frederick Schmidt, a citizen of Columbia, S. C., having- erected an ice manufacturing plant on Main street in that city, effected fire insurance thereon, through resident insurance agents, to the total amount of $8,100 in the following companies, viz.:
Rochester German Insurance Company.$2,500
Palatine Insurance Company, of London, England. 3,500
Phoenix Insurance Company, of Hartford, Conn. 1,000
Agricultural Insurance Company, of Watertown, N. Y. 1,100
Total . $8,100
On other adjoining land of his own in the same block Schmidt had several dwelling houses and stores, a hotel, and a laundry plant, on which he had obtained insurance through J. H. Walker & Co., resident insurance agents and bankers in Columbia, and, when he began the erection of the ice plant, he promised to give them the insurance on it, and before the ice plant began operation he took to them the estimate which his erecting engineer had made of the proper amount of insurance required, and Messrs. J. H. Walker & Co. prepared the policies. They were issued in May, 1902, insuring Frederick Schmidt against loss by fire. The items of insurance were distributed as follows, each policy covering its pro rata amount: $1,350 on brick composition roof building, occupied as an ice factory, and situated in the rear of No. 722, on the east side of Main street, page 19, block 249, S inborn’s Map of Columbia, S. C. $5,850 on machinery of all kinds, pumps, and their connections, condensers, filtering apparatus, freezing tanks, including coils in storage rooms, pipes and piping, shafting, gearing, pulleys, hangers, tools, and implements, and all other machinery and implements used in and about the premises usual to an ice factory, while contained in the above building. $750 on boilers and engines, including all connections and fixtures, foundations, and settings, while in communicating addition to the ice factory. $75 on stock of ammonia while contained in the above building. $75 on stock of salt, while contained in the above building. Total, $8,100.
The fire occurred December 30, 1902. On March 12, 1903, Schmidt assigned the policies to his wife, Nora Martin Schmidt, and he died
The defendant, Nora Martin Schmidt, duly appeared and demurred to the bill, upon the ground that she was entitled to have the cases she had instituted against the four insurance companies determined in a court of law, with a jury, and that the complainant and the other insurance companies had a plain, adequate, and complete remedy and defense at law. This demurrer came on to be heard before the late Circuit Judge Simonlou, and he held against the contention of Mrs. Schmidt that the court had jurisdiction to entertain the bill of complaint. 126 Fed. 998. The correctness of that decision is not before us for examination on this appeal, and cannot be considered by us. However, it is proper to bear in mind that the many questions of fact raised in this case involved almost entirely the credibility of witnesses and the weight of testimony, and were of the kind most appropriately tried by a jury; and the appellants having, against the objections of the appellee, brought these issues into a court of equity, where they were most carefully considered and determined by the learned trial judge (District Judge Brawley), his findings, like the verdict of a jury, ought not to be set aside if there is legal evidence to sustain them.
The defenses pleaded by the companies were: (1) That Schmidt represented himself as sole owner of the property, when in fact he was owner only of an undivided one-third interest therein. (2) That' he represented the property insured to be worth $8,100, whereas in fact it was not worth more than half that amount. (3) That the property insured was a manufacturing establishment which had ceased to be operated for ten consecutive days. (4) That the proofs of loss
The special master was appointed by an order signed on March 14, 1904, and made his report on November 27, 1906; so that, instead of the continuous progress of a jury trial, there was 23/3 years spent in taking the testimony. The opinion and findings of judge Brawley cover 10 pages of the printed record, and in it he carefully considers and determines every defense made by the insurance companies, with the result that he entered a decree against the insurance companies, on the 1st of March, 1907, amounting to $6,827.18, to be apportioned pro rata among -the four insurance companies. There were filed 32 assignments of error by the insurance companies, questioning every finding even of the most incidental and unimportant fact mentioned by the trial judge in his opinion; but as there was ample evidence, if believed by the trial judge, to support every disputed fact, we shall not re-examine his findings of fact.
The only vital question of law decided by the trial judge and excepted to was with regard to the insured’s title to the land on which the insured ice plant was located. The title to that part of the land on which the ice plant was placed had been, years before, deeded to his wife. She had died intestate some years before the insurance was effected. The title to the land, upon her death, descended one-third to Schmidt and two-thirds to his five daughters. Without objection from his daughters, he had always treated this property as his own. He had bought and paid for it originally, had always paid the taxes on it. He had built houses on it, and controlled them, and collected the rents, and at his own cost had placed on it the building and the machinery for the ice plant. He made no written application for the insurance and no representation with regard to the title to the land. He placed the business of insuring the ice plant in the hands of the resident agents of the insurance companies, and they, without questioning Schmidt as to his title to the land, prepared the policies on the usual standard form covering the building, machinery, and merchandise. - The policies contained the clause in common use in standard policies:
“This entire policy * * * shall be void * * * if the interest 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.”
This express condition of the policy gives rise to a distinct question of law as to which the facts are not in dispute. The land upon which Frederick Schmidt had built the insured ice plant had been conveyed in fee to his deceased wife, and after her death, by the laws of South Carolina, he was entitled to one-third, and her five children were entitled to the other two-thirds. Does that, even though Frederick Schmidt had original^ .paid for the property, the title to which was conveyed to his wife, and even though he had always paid the taxes on it, and paid for the improvements he erected on it, gratify
We think that the weight of authority is that, when a policy contains this language, it is made an express condition of the validity of the policy. In 2 Clement on Insurance, p. 152, it is said:
“An insured's ownership is sole when no one else has any interest in the property as owner and is unconditional when the duality of the estate is not limited or affected by any condition.”
In 1 May on Insurance, § 287, it is stated:
“A condition that, if the insured is not the sole, entire, and unconditional owner, the policy shall be void, is reasonable and valid, and failure to disclose the real state of the title, if not sole, etc., will be fatal, although the insured was not questioned as to that fact.”
Schroedel v. Humboldt Fire Ins. Co., 158 Pa. 459, 27 Atl. 1077, was a case arising upon a similarly worded condition in a policy issued to John Schroedel. The court said:
“The uncontradicted evidence was that the title to the property was in ilie plaintiff and his wife jointly. This in the absence of any proof of fraud or mistake as to the insertion of the stipulations above quoted, was a flat bar to the plaintiff’s recovers'.”
See, also, 13 A. & E. Encyclopaedia of Law (2d Ed.) 233.
In Hartford Fire Insurance Co. v. Keating, 86 Md. 130-145, 38 Atl. 29, 31, 63 Am. St. Rep. 499, it is said:
“To be unconditional and sole, the interest must be vested in the insured, not contingent or conditional, nor for .years or life, nor in common, but of such a nature that the insured must sustain the entire loss If the property is destroyed: and this is so whether the title is legal or equitable.”
See, also, Wineland v. Security Insurance Co., 53 Md. 276.
For the reason that the title of Frederick Schmidt did not gratify the express condition upon which the policy was granted, the policies tiever took effect, and we have no right to consider, under the circumstances of this case, whether or not the disclosure of the real title would have affected the risk or the rate of premium. Hunt v. Springfield, etc., Ins. Co., 196 U. S. 47, 25 Sup. Ct. 179, 49 L. Ed. 381; Baltimore Fire Insurance Co. v. Loney, 20 Md. 20-36; Parsons, Rich & Co. v. Lane, In re Millers’ & Manuf’rs’ Ins. Co., 97 Minn. 98, 106 N. W. 485; Insurance Co. v. Cochran, 77 Miss. 348, 26 South. 932; Palatine Ins. Co. v. Dickenson, 116 Ga. 794, 43 S. E. 52; Scottish Union, etc., Ins. Co. v. Petty, 21 Fla. 399; Waller v. Northern Assurance Co. (C. C.) 10 Fed. 232, 2 McCrary, 637. As soon as (during the preliminary examination as to the loss) the actual state of the title was disclosed, the defendant companies tendered a return of the premiums received. The weight of authority is that in policies of this kind, where the consideration is entire, the contract is entire, and is void as an entirety. Bowman v. Franklin Insurance Company, 40 Md. 620-623; Agric. Ins. Co. v. Hamilton, 82 Md. 88-96, 33 Atl. 429, 30 L. R. A. 633, 51 Am. St. Rep. 457.
The learned trial judge, considering that Frederick Schmidt took the policy in the form in which it was tendered to him innocently and in good faith, and had an insurable interest, and had an equitable in-
There remains a question as to the costs. By the bringing of these cases into an equity court, the costs have been greatly augmented. We think substantial equity will result from allowing the decree for costs below to remain as it was entered in the Circuit Court, and by dividing the costs in this court, one-half to be paid by Mrs. Schmidt and one-half by the four insurance companies, ratably.
Decree in favor of Mrs. Nora Martin Schmidt against the four insurance companies reversed, except as to the costs.
Reversed.'