German Ins. Co. of Freeport, Ill. v. Hayden

• Decision Date: 20 April 1895
• Citation: 21 Colo. 127,40 P. 453
• Parties: GERMAN INS. CO. OF FREEPORT, ILL., v. HAYDEN et al. [1]
• Court: Colorado Supreme Court

40 P. 453

21 Colo. 127

GERMAN INS. CO. OF FREEPORT, ILL., v. HAYDEN et al. ^[1]

Supreme Court of Colorado

April 20, 1895

Appeal from district court, Arapahoe county.

Action by Thomas S. Hayden and another against the German Insurance Company of Freeport, Ill., on a policy of insurance. From a judgment for plaintiffs, defendant appeals. Reversed.

Action upon fire insurance policy. Trial to the court. Findings and judgment for the plaintiffs. Defendant appeals.

'The plaintiffs complain of the defendant, and allege: First. That the defendant is a corporation duly organized and existing under and by virtue of the laws of the state of Illinois. Second. That on the 14th day of July, 1885, Clara P. M Leonhardy was owner of a certain frame dwelling house near the post office in Riverside, in the county of Chaffee, state of Colorado, and of a certain frame milk house near said dwelling house; and in consideration of the premium of one hundred and fifty (150) dollars paid to said defendant, the said defendant made, executed, and delivered its policy of insurance, in writing, whereby it secured said Clara P. M Leonhardy against loss or damage by fire, to the amount of four thousand eight hundred (4,800) dollars on said dwelling house, and two hundred dollars on said milk house, from the 14th day of July, 1885, at twelve o'clock noon, to the 14th day of July, 1890, at twelve o'clock noon. Third. That on or about the said 14th day of July, 1885, the said Clara P. M. Leonhardy made, executed, and delivered her certain promissory note, payable to the order of Hayden &amp Dickinson, a partnership composed of the aforesaid plaintiffs, for the sum of five thousand dollars, and then and there made, executed, and delivered her certain deed of trust, whereby she conveyed the land upon which the said insured buildings stood to Job A. Cooper, trustee, for the use of said plaintiffs, to secure to said plaintiffs the payment of said note; and it was provided in said policy of insurance that the loss, if any, should be payable to the said Job A. Cooper, trustee, as his interest should appear. And plaintiffs allege that said provision of said policy was made for their sole use and benefit. Fourth. That the said Clara P. M. Leonhardy and the said plaintiffs have duly performed all the conditions of said policy on their part to be performed, and on the ___ day of June, 1890, the said dwelling and the said milk house were totally destroyed by fire. Fifth. That the loss of the said insured thereby was five thousand (5,000) dollars, and that said deed of trust and the debt is still wholly unpaid and unsatisfied. Sixth. That the said plaintiffs immediately after said fire, and on to wit, the ___ day of June, 1890, furnished the said defendant with due proofs of said loss, according to the terms of said policy. Seventh. That no part of said money has been paid; that said sum is now due to said plaintiffs from said defendant. Wherefore, plaintiffs demand judgment for the sum of five thousand dollars, with interest thereon from the ___ day of June, A. D. 1890, to the date of judgment herein.'

Amended answer: 'Comes now the abovenamed defendant, and, for answer to plaintiffs' petition, says: First. That it denies each and every allegation in plaintiffs' petition except such as are hereinafter specifically admitted. Second. Admits that defendant is a corporation, as alleged, and that defendant issued the policy of insurance sued on, for the amount alleged, and covering the property described in plaintiffs' petition. Third. Admits the execution of the note, and deed of trust in favor of plaintiffs, as alleged in plaintiffs' complaint. Fourth. Admits that the insured buildings were destroyed by fire about the time alleged by plaintiffs, but denies that the said Clara P. M. Leonhardy or the plaintiffs, have performed all the conditions of said policy of insurance. Fifth. Denies that said assured was injured by said fire in the sum of five thousand dollars, but, on the contrary, defendant alleges that the insured buildings, at and immediately prior to said fire, were not worth to exceed two thousand dollars, and that there was no damage to any one, on account of the burning thereof, to exceed two thousand dollars. Sixth. As to whether said deed of trust and the debt secured thereby remains due and unpaid, defendant does not know; neither has it any knowledge or information sufficient to form a belief. Seventh. Defendant admits that plaintiffs have furnished the necessary proofs of loss, under the terms of the policy. Eighth. Admits that nothing has been paid under said policy, but denies that any sum is now due to plaintiffs from defendant. Ninth. Defendant, by way of further answer and defense to plaintiffs' complaint, says that it is expressly stipulated in said policy, as a condition therein, 'that insured covenants that the application herefor shall be and form a part hereof, and a warranty by the assured.' And the defendant says that on the 14th day of July, 1885, the said assured did make, sign, and submit to the defendant, a written application for said insurance, and in said application said insured did, in writing, expressly agree that the statements in the application 'shall be the sole basis of the contract between the company and the insured,' and in said application did warrant the application 'to contain a full and true description and statement of the condition, situation, value, occupation, and title of the property proposed to be insured, and warrants the answers to each of the questions in the application to be true.' Tenth. Defendant says that in the aforesaid written application the following question was asked the assured: 'What is the title?' To which question the said assured answered, 'Good.' And defendant says that said answer was false and untrue, and a breach of the said warranty in said application and policy, because defendant says that assured's title was not good; that she did not have any title to the real estate on which said insured buildings were situate, and had no title to said buildings thereon; and that by reason of said false answer said policy was and is wholly void. Eleventh. Defendant says that in said written application the following question was asked the insured: 'Is your property incumbered; by what, and to what amount?' To which question assured answered, '$800,' which said answer was false and untrue, and a breach of said warranty, because said assured, in said application, did not disclose the true amount of incumbrance on said property, because defendant says that at the time of making said application said property was incumbered by a deed of trust previously given upon said property by said assured, Clara P. M. Leonhardy, to Job A. Cooper, to secure to the firm of Hayden & Dickinson the payment of the sum of five thousand dollars, which said deed of trust was then and there a valid and subsisting lien on said insured property, in said sum, and that by reason of said false answer said policy was and is wholly void. Twelfth. Defendant further says that in said written application the following question was asked: 'Is there any other insurance on this property?' To which said assured answered, 'No,' when in truth and in fact said answer was false and untrue, and a breach of said warranty contained in said application and policy, because defendant says that there was then and there other insurance on said dwelling house and milk house, in the State Insurance Company of Des Moines, Iowa, in the sum of six thousand eight hundred and twenty-five dollars, and further that at said time of said application there was other insurance on said milk house described in plaintiffs' complaint, in the Denver Insurance Company, in the sum of two hundred dollars, and that, by reason of said false answer in said application with regard to other insurance, said policy was and is void. Thirteenth. Defendant further says that in said application the following question was asked assured: 'If incumbered, what is the whole value of your real estate, including buildings and land?' To which assured answered in said application as follows: 'One hundred and forty-nine acres; per acre, $150,'--meaning thereby that said land, including buildings thereon, was worth $150 per acre, when in truth and in fact said answer was false and untrue, because said land, with the buildings thereon, was worth less than twenty-five dollars per acre; and by reason of said false answer said policy was and is void. Fourteenth. Defendant further says that it is stipulated in the policy of insurance sued on, as a condition therein, that 'if other prior concurrent or subsequent insurance exist, whether valid or not, on said property, or any part thereof, without the company's consent hereon, then in such case this policy shall be absolutely void.' Defendant says that, at the time of the issuing the policy here sued on, there was other prior insurance on said insured buildings, not indorsed on the policy sued on, and to which defendant did not consent, to wit, $6,825 insurance on said insured buildings in the State Insurance Company of Des Moines, Iowa, and that after the issuance of the policy sued on there was other insurance, in the sum of $200, taken out on the insured milk house, in the Denver Insurance Company, by reason of which the policy sued on was and is wholly void. Fifteenth. Defendant further says that it is expressly agreed and stipulated in the policy sued on, as a condition therein, 'that if the interest of the insured in the said property, or any part thereof, now is, or shall become, any other or less than a perfect legal and...