Aetna Ins. Co. v. Resh

• Decision Date: 21 January 1879
• Citation: 40 Mich. 241
• Court: Michigan Supreme Court
• Parties: AEtna Insurance Company v. Charles Resh

40 Mich. 241

AEtna Insurance Company v. Charles Resh

Supreme Court of Michigan

January 21, 1879

Submitted January 16, 1879

Error to Kent. Submitted Jan. 16. Decided Jan. 21.

Judgment reversed with costs, and a new trial granted.

Norris & Uhl for plaintiff in error, cited Am. Ins. Co. v Gilbert, 27 Mich. 429; AEtna Ins. Co. v. Olmstead, 21 Mich 246; Van Buren v. St. Joseph County etc. Ins. Co., 28 Mich 398; Clay F. & M. Ins. Co. v. Huron S. & L. Mfg. Co., 31 Mich. 346; N.Y. Central Ins. Co. v. Watson, 23 Mich. 486; N.A. Fire Ins. Co. v. Throop, 22 Mich. 146; Peoria M. & F. Ins. Co. v. Perkins, 16 Mich. 380.

Simonds & Fletcher for defendant in error, cited as to the condition that the representations of the insured shall be considered warranties, National Bank v. Ins. Co., 95 U.S. 673; Elliott v. Hamilton Mut. Ins. Co., 13 Gray 139; Richmondville Union Seminary v. Hamilton Mut. Ins. Co., 14 Gray 459; American Popular Life Ins. Co. v. Day, 39 N.J. Law, 89; Fitch v. American Popular Life Ins. Co., 59 N.Y. 557; materiality of a misrepresentation bye the insured is a question for the jury, N.Y. Firemen Ins. Co. v. Walden, 12 Johns. 513; Columbia Ins. Co. v. Lawrence, 10 Pet. 507; Curry v. Commonwealth Ins. Co., 10 Pick. 535; Schenck v. Mercer County Ins. Co., 4 Zab. 447; Cornish v. Farm Buildings Fire Ins. Co., N.Y. Ct. of Appeals, 1878.

Campbell, C.J. The other Justices concurred.

OPINION

Campbell, C. J.

Resh, who was with his wife in possession of a house granted to him and his wife by the same deed, obtained insurance on his furniture and other chattels and on the dwelling, describing it as "his frame building, occupied by assured for residence and hotel," etc.

Being destroyed by fire he made proof of loss, but payment was resisted because he had misdescribed his interest and concealed an i

Reference was made in the policy to his written application which was declared to be a warranty, and the policy was to be avoided for any omission to make known a material fact.

In his application there was one express inquiry in the following form: "Question 16. Incumbrance. What incumbrance, if any?"

To this he answered, "None."

Another question was: "Title. Is your title to and interest in this property absolute? If not, state its nature and amount, and give name, interest, and amount of others concerned?"

Answer, "Yes."

The jury found these answers were filled out in perfect fairness and good faith by the agent from Resh's oral answers to his questions, and signed.

In fact, there was a $ 300 mortgage on the premises, given by Resh and wife.

The court below allowed him to recover for an undivided half interest in the house, one-half of the insurance money, and left the materiality of the false statements to the jury.

We think this was error. There is no room for disputing the materiality of such inquiries when both...