227 F. 813 | 8th Cir. | 1915
This is an action brought by the defendant in error, hereinafter called the plaintiff, to recover of the plaintiff in error, hereinafter called the defendant, the value of a house and furniture contained therein, which it is claimed were destroyed by fire September 3, 1913, while covered by a policy of insurance made and delivered by defendant to plaintiff August 23, 1913. The plaintiff recovered a verdict, and the defendant brings the case here on error.
There was a general demurrer filed to the complaint in the court below, and the record shows that it was sustained. It does not appear, however, in-'what respect the complaint was claimed to be faulty. The complaint was not amended, so far as the record shows,
“The assured’s title to land, on which the insured property is located, is under homestead claim against U. S. government, title to be perfected within live years.”
It thus appears that both parties knew that the insured property was upon the homestead claim, and the proof allowed to be introduced, as above stated, simply gave a correct description of that claim.
“H Are occur the insured shall give immediate notice of any loss thereby in writing to this company. * * * No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements.”
Assuming that the fire which destroyed the property occurred on September 3, 1913, the plaintiff did not give the insurance company immediate notice of the loss, except as the proofs of loss required by the policy, which were forwarded to the defendant on September 29, 1913, may be considered such notice. The trial court held that these proofs of loss constituted such notice, and that such notice, given on September 29, 1913, would be an immediate notice under the terms o f the policy. Whether this was the correct view to take of the matter we need not determine.
The proofs of loss were received by the insurance company and retained, and on September 27, 1913, one James Hopkins, an adjuster, acting for the defendant, was sent to the plaintiff, and examined him before a notary public touching the loss sustained by the fire. We think that the receiving of the proofs of loss without objection by the company, and the sending of an adjuster to the insured to examine him in connection with the loss, without any objection being made
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstances concerning this insurance or the subject thereof.”
It was pleaded in the answer of the insurance company that plaintiff’s representation as to the cost of the building, made by the insured to the agent of the insurance company at the time the policy yras issued, was untrue to the knowledge of the plaintiff, and that the building did not cost to' exceed $2,300. The plaintiff testified in regard to this matter at the trial as follows:
“Q. Did Mr. E. A. McClure, the agent who issued this policy, ask you at the time you applied for the insurance what the cost of the building was? A. Yes. Q. What amount did you state to him? A. I told him between $3,200 and $3,300, if I remember rightly. Q. Did Mr. E. A. McClure, the agent of this company at the time you applied for this insurance, state to you that the company would not accept insurance for an amount in excess of three-fourths of the cost of the building? A. No, sir; he didn’t. He stated to me that they wouldn’t insure the building for over three-fourths of the actual value, or what it cost me. Q. Did Mr. E. A. McClure, the agent from whom you secured this policy, state to you at the time it was applied for that the company would not insure the contents of the building for more than three-fourths of the actual value? A. I think not. The same question applied to both the house and furniture. Q. Mr. McClure then stated to you that the company wouldn’t insure the property, for which you applied for insurance, both building and contents, for more than three-fourths of the actual cash value? Á. I don’t think that is the way he stated it at all. Q. How do you recall he asked you this question? A. He didn’t ask me a question. He made the statement: T suppose you understand an insurance company does not insure for more than three-fourths of the actual cash value.’ I think that is the way it was put to me. I suppose by the actual cash value he meant what money was paid out and what the building really cost me, and I applied for insurance under that understanding. Q. Mr. McClure then stated to you that the company wouldn’t insure the property to exceed three-fourths of its actual' cash value? A. Of what the building cost.”
The policy carried $2,500 on the building. C. H. Johnson, a witness produced by defendant, testified that he was the carpenter who built the dwelling house in question for the W.’ H. Holliday Company, and that the cost of the building was- about $1,800, outside of the hauling and board. A. T. Foster, also a witness on behalf of the insurance company, testified that he was in the employ of the W. H. Holliday Company and was familiar with the material which went into the construction of the dwelling house that defendant insured. His testimony was to the effect that the cost of the building was about $1,850, including hauling. He also testified that the hauling of material for a house of this particular size would cost about $165. On this state of the record counsel for the insurance company requested the court to charge the jury as follows:
“You are instructed that if tbe plaintiff, Sylvester M. McKone, knowingly made to tbe agent of tbe defendant company a false and fraudulent statement of tbe actual cost of tbe property to be insured, in order to procure tbe insurance, then you are instructed that tbe plaintiff cannot recover in this action.”
At the trial counsel for the insurance company offered in evidence certain homestead proofs made by the plaintiff on March 6, 1914. These proofs consisted of the affidavit of the plaintiff and two other witnesses, John Childress and William H. Bridger. 'These proofs were offered for the purpose of showing that it appeared therefrom that plaintiff and his witnesses, in making said proof, testified that the dwelling house located on the homestead was destroyed by fire on March 13, 1913, long before the policy sued upon was issued. The offer of this evidence w*as excluded by the court, and an exception taken by counsel for the insurance company. We think there was no error in this ruling, as it did not appear that the plaintiff was present when Childress and Briclger gave their proofs, or that he knew what they had testified to, and the three affidavits were offered together. The plaintiff’s affidavit, no doubt, would have been admissible, if offered alone.
“The petition alleges, and I think the proof clearly shows, that the building insured and its contents were destroyed by fire on the 3d day of September, 1913.”
While the homestead proofs were excluded, the testimony of Symons that the plaintiff had stated under oath that the fire occurred March 13, 1913, remained. We think the credibility of the witness upon this proposition was a question for the jury ff> determine, and that it was error for the court to decide the question, and thereby prevent the jury from passing upon it.
For the errors specified, the judgment below must be reversed, and a new trial ordered.
<&wkey;>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
<&wkey;>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes