North River Insurance Co. v. Sanguinetti
| Decision Date | 06 May 1931 |
| Docket Number | Civil 2926 |
| Citation | 38 Ariz. 221,298 P. 922 |
| Parties | NORTH RIVER INSURANCE CO., a Corporation, Appellant, v. E. F. SANGUINETTI, Appellee |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.
Messrs Ellinwood & Ross, Mr. Martin Le Boutillier and Mr. Wm. H Mackay, for Appellant.
Mr William H. Westover, for Appellee.
E. F. Sanguinetti brought this action against O. T. Simonson for $1,321.11, and caused a writ of garnishment to be issued and served on the North River Insurance Company, insurance carrier for Simonson whose property had been recently destroyed by fire. The contest is between plaintiff and the garnishee. Judgment in favor of plaintiff against defendant Simonson was entered upon the pleadings, and the latter dropped out of the case except as a witness. Upon issues formed between the plaintiff and the garnishee, the trial proceeded before a jury and resulted in a verdict in favor of the plaintiff. The garnishee has appealed.
The facts are presented to us under an agreed statement of the case. We learn therefrom that some time before the fire the garnishee issued to Simonson, on a New York standard form, a policy of insurance against damages by fire, to building $500, merchandise $600, fixtures $450, and personal effects $150, located in Wellton, Yuma county; that all said property was, on August 27, 1927, destroyed by fire; that due proof was made and payment demanded and refused before suit was brought and garnishment served; that the building was not on ground owned in fee simple by the insured, but that it was on leased ground and there was a mechanic's lien on it for $800; that the personal effects belonged to one Thompson; that certain of the fixtures, to wit, tanks, pumps and gasoline equipment were bought under conditional sales contracts and were not entirely paid for; and that said Thompson was a partner of the insured "in the profits derived from the business."
We also learn therefrom that the garnishee's defense is based upon the insured's breach of the following conditions of the policy, to wit:
That the plaintiff denied that the insured concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof, and contended that the garnishee waived the unconditional and sole ownership and fee-simple clauses in the policy.
The garnishee presents its contentions in the form of two assignments: First, it is said the plaintiff having admitted in his pleadings and in his evidence breach of the conditions of the policy, and there being no evidence of a waiver of those conditions by the garnishee or its authorized agent, its motion for a directed verdict should have been granted; second, that "the trial court erred in instructing the jury that garnishee waived the conditions by issuing the policy without requiring a written application from the insured and investigating insured's ownership."
Whether the encumbrance on the insured's title and ownership was a breach against the warranties inserted in the policy we think depends upon the facts. If at the time, or before, the policy was written the insurance company was truthfully informed by the insured that the building was on leased land, that there was a mechanic's lien filed against it, that the fixtures were bought on conditional sales contract and had not been entirely paid for, that the personal effects belonged to Thompson, etc., and, notwithstanding, the company wrote and delivered a policy to the insured as though it had not been given such information, the breach of the conditions as to ownership and title would be only nominal and not actual. The insured had an insurable interest in all the property (except the personal effects) and such interest the policy recognizes might have been insured "by agreement endorsed hereon or annexed hereto." The omission of such indorsement or rider, when all the information as to ownership or title is imparted, should be charged to the party preparing the policy -- the insurer invariably in all these cases.
That the information as to the insured's title and interest in the property was given the garnishee before or at the time the policy was written seems quite certain. O. T. Simonson the insured, was the only witness, and we are impressed, as the jury must have been, that he told the truth as to how he obtained the policy. He saw one Shanks, who occupied a room in lawyer Timmons' office in Yuma, and asked him about getting insurance. Shanks either had in his possession or went into the Security Trust & Savings Bank, located near by, and got a blank policy, or a blank application for a policy, with the North River Insurance Company. Witness said he...
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