Mascott v. First Nat. Fire Ins. Co.

• Decision Date: 31 October 1896
• Court: Vermont Supreme Court
• Parties: MASCOTT et ux. v. FIRST NAT. FIRE INS. CO.

37 A. 255

69 Vt. 116

MASCOTT et ux.

v. FIRST NAT. FIRE INS. CO.

Supreme Court of Vermont. Rutland.

Oct. Term, 1896.

Exceptions from Rutland county court; Taft, Judge.

Assumpsit by Fred E. Mascott and wife against the First National Fire insurance Company on a fire insurance policy. There was a trial by jury at the March term, 1896. At the close of the testimony defendant moved for a verdict, and, the motion being denied, did not desire to go to the jury on any issue of fact The court then directed a verdict and rendered judgment thereon, for plaintiff, and defendant excepts. Affirmed.

Wm. H. Preston, F. S. Piatt, and Butler & Moloney, for plaintiff.

Henry L. Clark, J. C. Baker, and F. W. McGettrick, for defendant.

START, J. The action is assumpsit upon a fire insurance contract, by which the plaintiffs were insured in the sum of $960 on their twostory frame building, occupied for a storehouse and paint shop. The policy contained the following provision: "This entire policy shall be void if the insured has concealed of 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." The policy further provided that, unless otherwise provided by an agreement indorsed thereon or added thereto, the policy should be void if the interest of the insured was other than unconditional and sole ownership, or if the subject of the insurance was a building on ground not owned by the insured in fee simple, or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there was kept, used, or allowed on the premises, benzine. As the defendant did not desire to go to the jury upon any issue of fact, the following circumstances must be considered in passing upon the questions presented by the defendant's motion for a verdict: That the building was insured as a storehouse and paint shop; that it was consumed by fire; that the fire was caused by the use of benzine, mixed with asphaltum, in the paint shop; that benzine was an article necessarily used in a paint shop, and indispensable in the business; that the damage equaled or exceeded the insurance; that due notice and proofs of loss were furnished; that plaintiff Emma owned in fee simple the land on which the building was erected; that the building was erected with money belonging in part to both plaintiffs; that the building and lot were worth $2,500; that there was a mortgage for $200 on same at the time the contract of insurance was made, and ever since has been; and that the incumbrance was not represented to the defendant at the time the contract of insurance was made. It did not appear that any written application for insurance was made by the plaintiffs, nor that the agent of the defendant made any inquiries respecting incumbrances.

1. The defendant insists that the contract of insurance is void because the plaintiffs were not owners in fee simple of the land on which the building was erected, and this fact was not indorsed on the policy, or added thereto. Emma Mascott held the legal title to the land, and the combined interest of the plaintiffs in the land was that of owners in fee simple; and it was not necessary that their respective interests should be set forth in the contract of insurance. The combined ownership in them is not inconsistent with the condition of the policy. The policy was not to be void by reason of the condition in regard to ownership, unless the building was on "ground not owned by the insured in fee simple." It cannot be said that the building was on land not owned by the insured. If the conveyance of the land, the relation of the insured to each other, their marital rights, the manner of occupancy, the sum each contributed to the erection of the building, had been set forth in the policy, it would have appeared that their combined interest was that of owners in fee simple, and that they were the only owners of the land. Being such owners, the contract of insurance is not void because their respective interests are not set forth in, or indorsed upon, the policy. To hold such a contract void because of the condition in respect to the ownership of the land, there must be an ownership in some person other than the insured. In Rankin v. Insurance Co., 47 Vt. 144, the action was upon a policy of insurance on a woolen factory, which was issued to the Essex Mills Company and George H. Wilbur. The factory was owned by the Essex Mills Company, but was operated by Wilbur under a contract with the company. The court found that at the time of the proof of loss Wilbur had no interest in the property insured. The policy provided that, if the interest or property insured be leasehold, or that of mortgage, or any other interest not in fee simple in case of real estate, or absolute as to personal property, such must be made known to the company, and expressed in the policy. The court held that this condition was obligatory upon the insured only in cases where the united interest of the insured was less than absolute. In Webster v. Insurance Co., 53 Ohio St. 558, 42 N. E. 546, the representation made by the insured was that the property was owned jointly by them, when, in fact, the house was owned wholly by the wife. The policy was issued to the husband and wife, and it was held that they could jointly recover on the policy. In Wainer v. Insurance Co., 153 Mass. 335, 26 N. E. 877, it is held that if a person has such an interest in property that he will suffer pecuniary loss by its destruction, he has an insurable interest; and, if he has an insurable interest, it is sufficient to describe the property as belonging to him, unless some inquiry is made of him, the answer to which amounts to a false warranty, or a misrepresentation. In Dohn v. Insurance Co., 5 Lans. 275, a condition in the policy required that, if the applicant had a less estate than a fee in the property to be insured, he should state the nature of such estate; and it was held that, inasmuch as no question as to the nature of the title of the applicant was included in the written form of application furnished by the company, it was liable upon such policy, although the title held by the insured was, in fact, an equitable one only, under a contract of sale. In insurance Co. v. Dunham, 117 Pa.St. 460, 12 Atl. 668, the insurance was upon certain buildings on land which the insured had purchased, but on which he had made no payment. The policy contained a condition that insurance on buildings on land not owned by the insured in fee simple should be void, and it was held that the insured had an insurable interest. In Niblo v. Insurance Co., 1 Sandf. 551, it is held that the description of the buildings in a fire insurance policy as "his buildings" is not equivalent to a warranty on the part of the assured that he is the owner of the same; that it does not constitute a misrepresentation of the fact when the only interest in the buildings is as tenant for a year; and that, where no inquiry is made, or statement given, on the happening of a fire, he will recover according to his real interest.

2. The defendant also insists that the contract of insurance is void because benzine was used in the building, contrary to a printed condition in the policy. The contract of insurance provided for the occupancy of the building for a paint shop. Benzine, mixed with asphaltum, was used in the paint shop; and it must be held, from the statements in the exceptions, that it was necessarily used, and indispensable in the business authorized by the contract of insurance to be carried on in the building. It is fair to presume that when the defendant made the contract for insurance upon the building, and authorized its use for a paint shop by a clause...