Cerys v. State Insurance Co. of Des Moines, Iowa

• Decision Date: 26 January 1898
• Docket Number: Nos. 10,858 - (266).,s. 10,858 - (266).
• Citation: 71 Minn. 338
• Parties: ALBERT CERYS v. STATE INSURANCE COMPANY OF DES MOINES, IOWA.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 338

71 Minn. 338

ALBERT CERYS v. STATE INSURANCE COMPANY OF DES MOINES, IOWA.¹

Nos. 10,858 - (266).

Supreme Court of Minnesota.

January 26, 1898.

Appeal by plaintiff from an order of the district court for Wright county, Tarbox, J., setting aside a verdict in his favor for $1,000, and ordering judgment for the defendant notwithstanding the verdict. Affirmed.

Wm. E. Culkin and W. H. Cutting, for appellant.

Wendell & Pidgeon, for respondent.

COLLINS, J.

Action to recover upon fire insurance policy, in which the assured received a verdict. Upon a motion made for judgment notwithstanding the verdict, or, if denied, then for a new trial, the verdict was set aside, and judgment ordered for defendant company.

The order appealed from might be affirmed upon either of several grounds, but we shall rely upon one only. The policy was in what is well known as the "Minnesota Standard Form," and was based upon plaintiff's written application. This application was, by its own terms and by the terms of the policy, made a part of the policy, so that, taken both together, the contract is ascertained and determined. This application, admittedly signed by plaintiff himself, contains the following language:

"Having read the foregoing application, and fully understanding its contents, I warrant it to contain a full and true description and statement of the condition, situation, value, occupancy, and title of the property proposed to be insured, and I warrant the answer to each of the foregoing questions to be true. * * * The above statements shall be the sole basis of the contract between the said company and myself, and are hereby made a part of the same."

By the policy it was provided, among other things, that

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated herein. * * * If an application * * * be referred to in this policy, it shall be a part of this contract, and a warranty by assured. * * * This policy is based upon an application and survey of the property on file, which is hereby referred to as forming part of this policy."

In response to a direct question in the application as to any incumbrance upon plaintiff's land upon which the insured buildings and personal property therein contained were situated, plaintiff answered, "The entire incumbrance is $1,400, due five years," when the fact, as admitted upon the trial, was that the principal sum due upon the incumbrance at the date of the application, and when the policy was issued, was $1,700. In Campbell v. New England, 98 Mass. 381 (Justice Gray writing the opinion), its was said, at page 403:

"The parties may, by the frame and contents of the papers, either by putting representations as to the quality, history, or relations of the subject insured into the form of answers to specific questions, or by the mode of referring to them in the policy, settle for themselves that they shall be deemed material. And when they have done so the applicant for insurance cannot afterwards be permitted to show that a fact,...