State Mut. Ins. Co. v. Latourette

• Decision Date: 21 February 1903
• Citation: 74 S.W. 300
• Parties: STATE MUT. INS. CO. v. LATOURETTE.
• Court: Arkansas Supreme Court

74 S.W. 300

STATE MUT. INS. CO. v. LATOURETTE.

Supreme Court of Arkansas.

February 21, 1903.

Appeal from Circuit Court, Craighead County; Felix G. Taylor, Judge.

Action by L. Latourette against the State Mutual Insurance Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The appellant brought suit to recover for loss by fire to certain property in Jonesboro, Ark., in the sum of $500. To this complaint the defendant filed the following answer, in substance: It admits the execution and delivery of the said policy of insurance and the loss of the buildings by fire, but denies any and all liability thereon, because the said plaintiff made an application to defendant to insure the above-described property, in which said application were the following questions and their answers by the plaintiff: "Q. Is your title to property to be insured absolute, unqualified, and undivided? A. Yes." And in said application there is the following clause or paragraph, to wit: "This application shall be considered a part of the contract of insurance and a warranty by the application, and it is further understood and agreed that this company will not be bound by any representations of the applicant, or promise of the agent or solicitor not contained therein; and I further agree that the answers to all questions are my own, or by my express authority. I warrant the foregoing application to contain a full and true description and statement of the condition, situation, value, occupation, and title of the property proposed to be insured in the State Mutual Insurance Company, and I warrant the answers to each of the foregoing questions to be true, full, complete, and correct, and the same shall be a part of my contract of insurance in said company." From which it will be seen that the application was made a part of the contract of insurance, and the answers were warranted to be true; but said answer was not true, and was false in this: That at the time said insurance policy was issued the title was vested absolutely in Mrs. Mary Latourette, wife of the said L. Latourette, and by reason of said answer and said warranty in application, made a part of the contract of insurance, said insurance policy was absolutely void. There is the following clause or paragraph in said policy of insurance: "This entire policy shall be void if the insured has concealed or 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; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss." That by reason of said fraud and misrepresentation as to title and ownership the said policy was void from its inception, and never had any binding force. It is admitted that the title to the property insured was in Mrs. Latourette at the time of the insurance and at the date of the loss.

L. Latourette, the plaintiff, testified as follows: "It is admitted that the insured building was burned, and that the plaintiff should recover the full amount or nothing. No application for this insurance was written. I did not give any agent such application. Mr. Cooley was the agent through whom I took out the insurance. Q. What, if anything, was said at the time in regard to the title of the property? A. Mr. Cooley brought the policy to the store all fixed up, and wanted to collect the money at the same time; and when he showed the policy he was swearing me it was my property. My wife and Charlie, my son, were present. And I said `I will swear to it, but that property is in Mrs. Latourette's name;' and he said: `That don't make any difference. That's your homestead.' I said the rest of my property was in my name, and this was in Mrs. Latourette's, and he said it didn't make any difference." Cross-examination: "I made an application for insurance before I got the policy. I signed it. (Witness here identifies application as the one he signed, and it is made part of the evidence.) I did not inform Mr. Cooley, before the policy was sent, that the title was in my wife; but I told him so when he brought the policy to my store to deliver it. I know Mr. L. Hirsch. He came to Jonesboro a few days after the fire. Mr. Parsons had garnished the money. I did not say anything to Mr. Hirsch about the title of the property — whether it was in me or my wife — when he came to settle the loss. I don't know whether he knew the title was in me or my wife." "Now, I understand you to say that you informed Mr. Cooley, before the policy was sent, that the title was in your wife? A. No, sir. When he brought the policy, I told him the land was in my wife's name and the house in mine. He said, `That don't make any difference.'" Charles Latourette testified for plaintiff as follows: "I am the son of the plaintiff. Was present when Mr. Cooley brought the policy of insurance to my father. My father stated to Mr. Cooley that the title to the property was in Mrs. Latourette's name. Mr. Cooley said that did not make any difference." H. M. Cooley testified for defendant as follows: "I live in Jonesboro. I was the local agent representing the defendant insurance company about a...