Finlon v. National Union Fire Ins. Co.

• Decision Date: 27 May 1913
• Parties: FINLON v. NATIONAL UNION FIRE INS. CO.
• Court: Oregon Supreme Court

132 P. 712

65 Or. 493

FINLON v. NATIONAL UNION FIRE INS. CO.

Supreme Court of Oregon

May 27, 1913

Appeal from Circuit Court, Grant County; Dalton Biggs, Judge.

Action by P.J. Finlon against the National Union Fire Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed, with directions to enter judgment of nonsuit.

The substance of the complaint is that on December 10, 1907, and until November 15, 1908, one Sullivan was the sole owner and in possession of a frame building occupied as a blacksmith shop, and was the owner of the tools and fixtures contained therein; that on December 10, 1907, the defendant, in consideration of $15.35, executed and delivered to Sullivan its fire insurance policy, insuring the property in the sum of $350 against loss by fire, a copy of the policy being annexed to the complaint; that all the property was of a greater value, and was destroyed by fire November 15, 1908 and about November 20th thereafter Sullivan assigned the policy and all his rights thereto to the plaintiff; that immediately after the fire and assignment the plaintiff notified the defendant of the fire and loss, and that plaintiff was ready, willing, and able to render a signed and sworn statement and furnish proof of said loss according to the conditions of the policy, and that defendant waived said proof and requirements and refused to adjust the loss; that plaintiff has fully complied with all and every other terms and conditions subsequent and otherwise imposed by said policy; and that no part of the loss has been paid. The policy upon which the action is based provides, among other things, as follows: "That the policy shall be void if the insured has concealed or misrepresented any material fact or circumstances concerning said insurance or the subject thereof, or if the interest of the insured be other than unconditional and sole owner, or if the interest of the insured in the property be not truly stated herein, or if the ground occupied by the building is not owned by the insured in fee simple," etc.

After admitting the corporate existence of the defendant, the issuance of the policy of insurance, and the destruction of the property by fire, the answer denied all the other allegations of the complaint. Besides other defenses, the company then charged that, contrary to the representations of the insured, he never was the owner in fee of the land upon which it stood. The reply traversed the new matter of the answer, except as alleged in the...