Howard v. Horticultural Fire Relief of Oregon
| Decision Date | 13 July 1915 |
| Citation | 77 Or. 349,150 P. 270 |
| Parties | HOWARD ET AL. v. HORTICULTURAL FIRE RELIEF OF OREGON. |
| Court | Oregon Supreme Court |
Department 2.
Appeal from Circuit Court, Jackson County; Robert G. Morrow, Judge.
Action by S. T. Howard and George A. Morse against the Horticultural Fire Relief of Oregon. Judgment for plaintiffs, and defendant appeals. Reversed as to plaintiff Howard, and affirmed as to plaintiff Morse, the judgment to be final.
See also, 144 P. 450.
On or about December 10, 1912, a fruit cannery located near Medford, Or., together with its equipment and contents, was destroyed by fire. At the time of the said fire, and at the time of the issuance of the policies hereinafter mentioned the record title to the property to the ground upon which the same was located stood in the name of S. T. Howard, Jr., and George A. Morse, plaintiffs in this action. Prior to the fire in question the plaintiff S. T. Howard, Jr., made application for and secured the issuance of fire insurance policies upon said property as follows: On August 7, 1912, policy No. 17420 of the Horticultural Fire Relief of Oregon, purporting to insure S. T. Howard and George A. Morse against loss by fire for the term of one year beginning August 26, 1912, to an amount not exceeding $750, upon a two-story frame building together with its additions adjoining and communicating; on September 16, 1912, policy No. 18198 of the Horticultural Fire Relief of Oregon, purporting to insure S. T. Howard and George A. Morse against loss by fire from September 14, 1912 to December 13, 1912, to an amount not exceeding $500 upon fruit, green, dried, or in process of drying, while contained in said fruit cannery building. Each of said policies contained and consisted of the provisions set forth in section 4666, L. O. L., as amended by Laws of 1911, c. 175 and was what is commonly known as the "standard fire insurance policy." No agreement or memorandum was attached to or indorsed upon any of said policies providing for the insurance of any interest in said property less than the sole and unconditional ownership therein of the persons named as assured in said policies, nor permitting the insurance of a building upon ground in which the assured had other than a fee-simple title. On or about February 8, 1913, after said fire, the plaintiffs presented proofs of loss to the company issuing the policies above mentioned. In each of said proofs of loss plaintiffs swore to the following statements concerning the ownership of the property claimed to have been destroyed by fire:
"That the interest of the assured and each of them is that of owner of an undivided one-half interest in and to the property described in said policy, and as to the undivided one-half interest of S. T. Howard, Jr., the estate of S. T. Howard, deceased, of which S. T. Howard, Jr., together with J. K. Howard, his brother, are executors, provided the money with which said property was purchased, and the said S. T. Howard, Jr., is, as such executor, trustee of said estate; that it is his custom to take title to property in his own name and insure it for the benefit of said estate in his own name, and that the said S. T. Howard has complete control of said property; * * * there are no incumbrances on said property; heretofore there was an execution issued out of the circuit court of the state of Oregon in and for Jackson county, and levied upon said property; that said execution was void, to the best knowledge and belief of the insured, and each of them; that thereafter, and before this fire occurred, there was issued out of said circuit court of the state of Oregon for Jackson county, an injunction enjoining the sale of said property and enjoining the plaintiff [defendant] in said suit from proceeding further in said matter, which said injunction is still in force with a slight modification, and which modification was made ex parte and without notice to said S. T. Howard, in whose behalf said injunction was issued, and without whose knowledge said modification was obtained."
This suit was commenced on June 25, 1913, to recover the sum of $1,250 upon the two policies issued by the defendant as above set forth. The defendant demurred to the complaint against it upon the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it showed upon its face that plaintiffs were not the sole and unconditional owners of the property described in the policy sued for. The demurrer was overruled, and defendant interposed an answer setting up the following provisions:
It was further alleged in said answer that plaintiffs herein were named as the insured in said policies of insurance; that at the time said policies were written and issued, and at the time of said fire, said plantiffs were not the unconditional and sole owners of the property described in said policies or of any part thereof, but an undivided one-half interest therein belonged to and was vested in the plaintiff George A. Morse, and the title to the remaining one-half interest therein was vested in plaintiff S. T. Howard, Jr., as trustee for the use and benefit of C. I. Howard and the estate of S. T. Howard, Sr.; that of the undivided one-half interest in said property the title...
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Howard v. Horticultural Fire Relief of Oregon
...Jackson County; Robert G. Morrow, Judge. On motion for rehearing. Motion denied, and former opinion affirmed. For former opinion, see 150 P. 270. McCourt, of Portland (Veazie, McCourt & Veazie, of Portland, on the brief), for appellant. O. C. Boggs, of Medford (Boggs & Wilson and W. I. Vawt......