Schaeffer v. Anchor Mutual Fire Ins. Co.

• Decision Date: 13 April 1901
• Citation: 85 N.W. 985,113 Iowa 652
• Parties: M. H. SCHAEFFER v. THE ANCHOR MUTUAL FIRE INSURANCE COMPANY, Appellant
• Court: Iowa Supreme Court

85 N.W. 985

113 Iowa 652

M. H. SCHAEFFER v. THE ANCHOR MUTUAL FIRE INSURANCE COMPANY, Appellant

Supreme Court of Iowa, Des Moines

April 13, 1901

Appeal from Carroll District Court.--HON. S. M. ELWOOD, Judge.

REVERSED.

Sullivan & Sullivan for appellant.

Salinger & Korte for appellee.

OPINION

WATERMAN, J.

The policy was for $ 800, and covered a frame building occupied as a harness shop and dwelling. The first question presented is whether plaintiff, in whose name the policy was made out had an insurable interest in the property. It is conceded that at the time the policy was issued the title to the property was in one B. C. Wente, the father-in-law of plaintiff. The only interest the latter had, as stated by him, was through this arrangement with the owner: "He [Wente] says to me I shall pay the taxes and insurance on the building, and, if I did pay the taxes and insurance, I could do business there, and live there. There was a dwelling house upstairs. I could have use of building and live there. When I was ready, I moved in. I had a harness shop, and lived up stairs." On the part of defendant it is contended that this shows plaintiff to have been only a tenant at will, and as such he had no insurable interest. In Carter v Insurance Co., 12 Iowa 287, the court says: "A limited qualified interest or any reasonable expectation of property or advantage from property is insurable. * * * It may be said generally that any interest may be insured if the peril against which insurance is made would bring upon the insured by its immediate and direct effect a pecuniary loss." Again in Merrett v. Insurance Co., 42 Iowa 11, Beck, J., speaking for the court, says: "What is an insurable interest? An interest, to be insurable, does not depend upon the title or ownership of property. It may be a special or limited interest, disconnected from title, lien or possession. If the holder of an interest in property will suffer loss by its destruction, he may indemnify himself therefrom by a contract of insurance." Under this rule the homestead right of occupancy is insurable. See the case last cited; also Carey v. Insurance Co., 97 Iowa 619, 66 N.W. 920. So likewise is the right of possession of chattels. Fox v. Insurance Co., 93 Iowa 7, 61 N.W. 211. Under our statute a tenant at will is entitled to 30 days' notice before he can be dispossessed. He therefore has at least that term of definite, fixed possession. This right is insurable. What its value might be in the present case we are relieved from determining, for defendant has agreed of record that plaintiff's right of recovery, if he is entitled to succeed is $ 800.

There is another view of this matter which is presented by the record, although not discussed by counsel. Plaintiff was under obligation, through his agreement with the owner, to keep his property insured; and, so far as appears, this was to be done for the latter's benefit. He had a right as a mere agent to do this. If, with full knowledge of all the facts, defendant chose to issue the policy in the agent's name, it cannot escape liability on the ground that he had no interest in the subject-matter. Wente's interest was certainly insurable, and it looks to us as if that was what plaintiff agreed to protect.

I. The policy contained this provision: "If the interest of the assured in the property, whether as owner, trustee consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in this policy, then * * * this policy shall be void." In its answer defendant avers that in plaintiff's application for the insurance he stated that he was the owner of the land upon which the building was situated; that this statement was intentionally and willfully made; that it was untrue, for that title was in Wente at the time; and because of this fraud the policy was void from its date. In response to this claim plaintiff alleges that the facts of his interest and occupancy and of the ownership of the property were fully stated to one Hannasch, a soliciting agent for defendant, who took the application, and filled it out; that plaintiff supposed the facts were correctly stated as he gave them, and did not learn the contrary until after the loss occurred. Evidence was offered by plaintiff to sustain these averments. To meet this testimony Hannasch was called by defendant, and testified as follows: "I took the application of Mr. Schaeffer, who has just testified in this case. He signed the application. * * * The information I received and put in this application I got from Mr. Schaeffer,--the size of the building, and when it was built; I got that from Mr. Schaeffer. Q. Now, one question in the application is, 'Are you the owner of the property?' and the answer is, 'Yes.' From whom did you get that information? A. I presume, from Mr. Schaeffer; and the same as to the ownership of the building and the ownership of the land upon which it is situated. All this information came from Mr. Schaeffer. I don't see how I got the answers in any other way than it was answered to me by Mr. Schaeffer." This answer was stricken out...