Hunt v. Mercantile Ins. Co.

• Decision Date: 17 November 1884
• Citation: 22 F. 503
• Parties: HUNT v. MERCANTILE INS. CO.
• Court: U.S. District Court — Eastern District of Missouri

22 F. 503

HUNT v. MERCANTILE INS. CO.

United States Circuit Court, E.D. Missouri.

November 17, 1884

Hiram J. Grover, for plaintiff.

Krum &amp Jonas, for defendant.

Suit upon a policy of insurance, taken out by the plaintiff in his own name, upon a building and contents. The contents belonged to the plaintiff, but the building was the sole and separate estate of his wife. Building and contents having been destroyed by fire, this suit was brought to recover $500, the amount of insurance upon the former. The defendant sets up as matters of defense-- .

(1) That said building was used at the time it was insured as a tobacco manufactory, and was insured as such; that said policy provides that if any building therein described should become vacant or unoccupied for the purpose indicated in the policy, then the policy should become void, unless consent in writing should be indorsed by the insurer upon said policy and that without any such consent being given said property was allowed to remain vacant and unused for the purposes indicated in the policy for the period of thirty days prior to its destruction by fire. (2) That said building was the sole and separate property of plaintiff's wife, and that fact not having been expressed in the policy as therein required, the policy was on that account void. (3) That subsequent to said loss the Mercantile National Bank had recovered a judgment in this court against plaintiff for the sum of $7,469.60, and had execution issued, and summoned the defendant herein as garnishee; that defendant duly answered the interrogatories filed in said proceedings, denying any indebtedness to plaintiff, and alleging in its said answer the same facts as defenses for non-indebtedness to the plaintiff herein upon said policy as are pleaded in this suit; that the same issues were made up in said garnishment proceedings, on a denial of said answer, and the reply to said denial, that are presented in this suit, and upon a trial of said issues, the plaintiff herein, being a party cross-examined the witnesses introduced, and that the court determined all of said issues in favor of defendant, except as to $500, the amount of insurance mentioned in said policy of insurance as being upon the personal property described therein, which amount of money the court determined to be in the hands of defendant as garnishee, and to be due plaintiff that said sum was paid to said bank; and that, by reason of the premises, the plaintiff herein has no further cause of action, because the issues in reference to such other claim and demand have all been determined by this court in favor of defendant, and are res adjudicata.

The plaintiff, by his reply, admits that said building belonged to his wife, but alleges that the insurance thereon, though taken out in his name, was so taken out by him as her authorized agent, and for her benefit, and that said insurance...