Oatman v. Bankers' & Merchants' Mut. Fire Relief Ass'n

• Decision Date: 29 July 1913
• Court: Oregon Supreme Court
• Parties: OATMAN et al. v. BANKERS' & MERCHANTS' MUT. FIRE RELIEF ASS'N.

133 P. 1183

66 Or. 388

OATMAN et al. v. BANKERS' & MERCHANTS' MUT. FIRE RELIEF ASS'N.

Supreme Court of Oregon

July 29, 1913

Department 1.

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Action by H.M. Oatman and T.A. Lane against the Bankers' &amp Merchants' Mutual Fire Relief Association. From a judgment for plaintiffs, the defendant appeals. Reversed.

This is an action upon a policy of fire insurance, issued by the defendant to the plaintiffs, to recover the sum of $2,000 the amount of said policy. This policy was issued September 7, 1911, upon a two-story frame dwelling house at Myrtle Creek in Douglas county and upon personal property. The amount of insurance on the house was $1,600 and on the personal property $400. All of said property was destroyed by fire on February 3, 1912. The plaintiffs paid a premium of $20 on said policy. The plaintiffs made proof of their loss by said fire. It is claimed that said proof was defective. Issues were made up, and this case was tried by a jury, and a verdict and a judgment were rendered for the plaintiffs in the sum of $1,500. The defendant appeals and alleges the commission of various errors by the trial court.

Buchanan & Porter, of Roseburg, and Hollis & Graham, of Forest Grove for appellant.

Cardwell & Watson, of Roseburg, and C.I. Leavengood, of Myrtle Creek for respondents.

RAMSEY J. (after stating the facts as above).

The evidence tended to show that the plaintiffs were the owners of the personal property insured.

The plaintiff H.M. Oatman, when a witness in his own behalf, was asked who owned the real estate insured in the policy sued on, and answered: "My wife, Mr. Lane's boy, Mr. Lane's wife, Floyd Weaver, and Annie Fry, and a few small interests in it of two little cousins of hers or Mrs. Dement's. I do not know what their given names are; two minor heirs, two little girls." This witness testified also that he and his coplaintiff owned the dower interest of Mrs. Emma Dement in said real property, and this is all the interest that the plaintiffs claimed in the real property, upon which the house was located, and it was shown that this interest was conveyed by a deed made by Emma Dement, dated October 26, 1909. This deed is in evidence and is defendant's Exhibit No. 1. Mr. Oatman admitted that this is the deed by which he and Mr. Lane claimed said dower interest in said real property, and that they had no interest in said real property, excepting what was conveyed by said deed. This instrument was recorded in the records of deeds of Douglas county. It is a quitclaim, and remised and released and quitclaimed unto Mrs. Homer Oatman, T.A. Lane, and J.B. Harris all the rights of dower which said Emma Dement had in the Geo. Dement estate of every kind and nature wherever situated, together with the personal property of said estate set off to said Emma Dement by the county court of Douglas county, Or., including her dower interest in the real estate in Myrtle Creek and the furniture and furnishings in the hotel. It recites that it was made for the sum of $200, paid by Mrs. Homer Oatman, T.A. Lane, guardian of Harold Lane, a minor, and J.B. Harris.

Mr. Oatman, one of the plaintiffs, testified that Mrs. Homer Oatman is his wife, but asserts that he and Mr. T.A. Lane paid the consideration for said deed and that his wife did not pay anything for said dower right or for said personal property. However, the deed is made to her and not to him. He never had any deed for any interest in said land, and hence he had no interest therein. Her name may have been inserted in the deed by mistake, but we are constrained to construe the deed as it reads. Therefore the evidence shows that the plaintiff H.M. Oatman had no interest in the insured real estate, and that the plaintiff T.A. Lane owned only one-third of the dower interest of said Emma Dement in said premises, and that the other two-thirds of said dower right in said premises are owned by Mrs. Homer Oatman and J.B. Harris, who are not named as beneficiaries in said policy. The plaintiff H.M. Oatman has no insurable interest in said real property on which said house was located, but he may have an insurable interest in the personal property. A person has an insurable interest in property only when the conditions are such that he will lose in case the property should be burned. Farmers' & Merchants' Insurance Co. v. Mickel, 72 Neb. 122, 100 N.W. 130, 9 Ann.Cas. 992; Home Insurance Company of N.Y. v. Mendenhall, 164 Ill. 458, 45 N.E. 1078, 36 L.R.A. 374. In the case last cited the Supreme Court of Illinois says: "Where the title of one is such, though not in fee, that he would suffer a loss or damage by the destruction of the premises, he may protect his interest, whatever may be the nature of it, by insurance, and thus it follows that an insurable interest is not always a fee-simple title."

In an action on an insurance policy, the plaintiff must allege and prove that the insured had an insurable interest in the property, both at the time of the making of the contract of insurance and at the time of the loss. Chrisman v. State Insurance Company, 16 Or. 283, 18 P. 466; Hardwick v. State Insurance Company, 20 Or. 547, 26 P. 840. In this state a husband has no insurable interest in his wife's property. 19 Cyc. 589; Agricultural Insurance Co. v. Montague, 38 Mich. 548, 31 Am.Rep. 326; Mercantile Insurance Co. v. The Orphan Boy, Fed.Cas. No. 9,431.

The evidence tends to show that the plaintiffs had an insurable interest in the personal property referred to in the policy and that T.A. Lane had an insurable interest in the dwelling house, but the plaintiff Oatman appears not to have had any interest in the...