Mackinnon v. Mut. Guar. Fire Ins. Co.

• Decision Date: 10 October 1893
• Citation: 56 N.W. 423,89 Iowa 170
• Parties: MACKINNON ET AL. v. MUTUAL GUARANTY FIRE INS. CO.
• Court: Iowa Supreme Court

89 Iowa 170

56 N.W. 423

MACKINNON ET AL.

v.MUTUAL GUARANTY FIRE INS. CO.

Supreme Court of Iowa.

Oct. 10, 1893.

Appeal from district court, Clinton county; P. B. Wolfe, Judge.

Action upon a policy of insurance against loss by fire. The plaintiffs allege the issuing of the policy, the loss, proofs of loss, and asks judgment for $1,039.17, with interest. The defendant answers, alleging as a defense the following: “It is provided in said policy that if the building stands on leased ground or if the title be less than fee simple in the insured, it must be so represented to said company, and so expressed in the written portion of the policy; otherwise, said policy shall be void. And defendant avers the truth to be that the factory building and additions referred to in said policy, at the date of said policy, and until said fire, stood upon leased ground, and plaintiffs' title was less than a fee simple; and the same was not so represented to said company, or known to it, and was not so expressed in the written portion of said policy. By reason thereof said policy was and is void. It is provided in said policy ‘that, if said insured shall conceal any fact material to the risk, said policy shall become void; and defendant says plaintiffs did conceal from it facts material to said risk, viz. that said buildings stood on leased ground, and that plaintiffs' title was less than fee simple; and by reason thereof said policy became and is void.” The case was tried to a jury upon the petition and answer, and at the conclusion of the evidence and arguments the court instructed the jury to find for the plaintiffs in the sum of $1,070.75, and entered judgment accordingly. Defendant appeals.A. R. McCoy and E. S. Bailey, for appellant.

Henderson, Hurd, Daniels & Kiesel, for appellees.

GIVEN, J.

One of the plaintiffs testified on cross-examination that the building that was insured was on leased ground, and had been for many years before the fire. On motion of the plaintiffs this evidence was excluded, to which defendant excepted. Defendant offered in evidence the proofs of loss made by plaintiffs, for the purpose of showing by the admission therein that plaintiffs were not the owners in fee simple of the real estate upon which the building stood, and that it was upon leased land. This evidence was excluded, upon plaintiffs' objection, to which defendant excepted. The ground of plaintiffs' motion and objection is that such evidence is not admissible under section 1733 of McClain's Code. Section 1733 is as follows: ...