German Union Fire Ins. Co. of Baltimore v. Cohen

• Decision Date: 30 November 1910
• Citation: German Union Fire Ins. Co. of Baltimore v. Cohen, 78 A. 911, 114 Md. 130 (Md. 1910)
• Parties: GERMAN UNION FIRE INS. CO. OF BALTIMORE v. COHEN.
• Court: Maryland Supreme Court

78 A. 911

114 Md. 130

GERMAN UNION FIRE INS. CO. OF BALTIMORE v. COHEN.

Court of Appeals of Maryland

November 30, 1910

Appeal from Baltimore Court of Common Pleas; Chas. W. Henisler Judge.

Action by Isidor Cohen against the German Union Fire Insurance Company of Baltimore. From a judgment for plaintiff defendant appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, SCHMUCKER, BURKE THOMAS, PATTISON, and URNER, JJ.

George A. Finch, for appellant.

Myer Rosenbush, for appellee.

PATTISON J.

A motion to dismiss this appeal has been filed in this case upon the ground that the costs of printing the transcript of the record were not paid by the appellant or his counsel within the 10 days from the receipt of the notice from the clerk of this court, stating the amount for printing the same, as provided by rule 34 of this court. A failure to comply with said rule does not authorize the dismissal of the appeal for such default. Havre de Grace v. Fletcher, 112 Md. 563, 77 A. 114. The motion to dismiss, therefore, must be overruled.

This action was brought by the appellee against the appellant company, upon a policy of insurance, to recover for loss and damage by fire to certain property alleged by the appellee to have been covered by said policy of insurance.

The appellee, on the 14th day of December, 1908, took out, with the German Union Fire Insurance Company, the appellant, a policy of insurance for $500 covering certain household furniture and effects at the time in the house then occupied by the appellee as a residence at 206 South Eden street, Baltimore, Md. This policy contained what is known as the Household Furniture Form, which is as follows: "$500. On household furniture, useful and ornamental, beds, bedding, linen, wearing apparel of family, printed books, pictures, paintings, engravings and their frames (value on said pictures, paintings, engravings and their frames, in case of loss, not to exceed cost). Musical instruments, plate and plated ware, china, glass and crockery ware, watches and jewelry in use, sewing machines, fuel, and family stores, while contained in the three story, tin roof, brick dwelling, situate No. 206 South Eden street, Baltimore, Md." On the 4th day of July, 1909, this property, while then in the house on Eden street occupied by the appellee, was destroyed or damaged by fire, and on the 17th day of July following, the appellee, through his attorneys, wrote the company, inclosing them a proof of loss, at the same time offering to furnish such other and additional data that might be required of him, in his power to furnish. Demand was made by the insured upon the company for the payment of the loss and damage sustained by the appellee by reason of such fire, but the appellant company refused to pay the claim, and based their refusal solely upon the alleged fact that the property at the time of the destruction or damage by fire was not located in the place mentioned in the policy of insurance, but had been removed therefrom without notice to or the approval of the company. It was for this reason, and for this reason alone, as disclosed by the evidence, that the appellant company, prior to the institution of this suit, resisted the payment of this claim. The contention arose from the apparent discrepancy existing between the furniture clause heretofore referred to and an indorsement placed thereon by the company as to the location of the property. This question, however, was properly presented to the jury for its consideration by the conceded fifth prayer of the defendant, and was passed upon and disposed of by it, and is therefore not before us for our consideration. Upon the failure of the appellant company to pay the claim of the appellee, suit was thereafter instituted upon the policy of insurance, and at the conclusion of the plaintiff's testimony in the trial below the defendant offered four prayers, all of which were refused, and at the conclusion of the whole testimony these four prayers were again offered as defendant's first, second, third, and fourth prayers, together with six others, all of which were refused, except the fifth prayer, which was conceded.

The record contains but three exceptions to the rulings of the court, one to the admission of testimony; another to the rejection of the prayers of the defendant offered at the conclusion of the plaintiff's case; and the third to the rejection of the defendant's first, second, third, fourth, sixth, seventh, eighth, ninth, and tenth prayers, and the granting of the plaintiff's first and fifth prayers.

The policy of insurance contains this clause: "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; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss; *** or if the interest of the insured be other than unconditional and sole ownership."

It is contended by the appellant company that the policy was rendered void, first, because of the want of insurable interest in the insured in certain of the property mentioned in the household furniture form or clause of the policy, to wit, sewing machine and wife's clothing, and that the appearance of these articles among the articles insured in the policy was a misrepresentation of ownership such as to render the policy void; second, because of the alleged false swearing of the appellee in relation to the proof of loss, in which he inserted these items of property destroyed or damaged by fire as belonging to him, or in which he had an insurable interest.

The household furniture clause attached to the policy is in the form of a printed slip containing the names of the articles or class of articles to be covered by the policy, and is generally, if not always, attached to all policies of insurance issued by the company wherein household furniture and effects are insured, unless it is the wish of the applicant for insurance that the description of the property be less general and comprehensive, and that only such items or articles of his property, or property in which he has an insurable interest, be inserted in the policy as may be specifically enumerated by him. In the use of this form the company does not call upon...