Sweeny v. Franklin Fire Insurance Company.
| Decision Date | 21 March 1853 |
| Citation | 20 Pa. 337 |
| Parties | Sweeny <I>versus</I> The Franklin Fire Insurance Company. |
| Court | Pennsylvania Supreme Court |
McKinley and H. M. Phillips, for plaintiff in error.—It was contended that the plaintiff had an insurable interest in the property insured. He was himself a stockholder, and therefore had an interest, and, with the other stockholders, a title to the land by possession. As against the state of Delaware such title might not avail; but as against third persons it was good, and no question as to it was made at the trial.
He was not only a stockholder, but the other stockholders, above two years before the insurance, had transferred all their right to the creditors, of whom the plaintiff was the principal one. The name of Strickland is not put to the transfer, but, though he was a stockholder at the commencement of the erection of the hotel, there was no evidence that he was so when the transfer was made. The plaintiff was interested as a creditor to more than the amount of the insurance, and was in possession before the transfer and afterwards.
Such an interest is insurable. A mere equitable or any qualified property in the thing insured may be protected by insurance: 2 Peters 25, Col. Ins. Co. v. Lawrence. A tenant by the curtesy can insure in his own name: 2 B. Munroe 47. A tenant for years can insure, as his, the building demised: 1 Sandf. S. C. R. 551. Also cited 1 Hall Rep. 41; 18 Pick. 419; 1 Wend. 85; 11 Johns. 311-2. That he could recover under such a policy, reference was made to 13 Mass. 61; 13 Id. 267.
A policy may be avoided on the ground of failure of warranty. A warranty may be expressed on the face of the policy, but there was none in this one: 7 Wend. 72.
There was no misrepresentation or concealment of a material fact. The second of the conditions referred to in the policy refers to goods, and not to buildings.
A person desiring insurance is not under obligation to disclose the nature and extent of his interest in the property: 13 Mass. 61; Id. 267; 8 Pick. 86; 10 Id. 40; Id. 535; 18 Pick. 417; the case of a house standing on the ground of another, which fact was not disclosed, and held not to be necessary; 12 Wend. 507; 16 Id. 385; 1 Sand. Sup. C. R. 551, that describing the building as his building (he being a tenant for years) did not amount to a warranty that he was the owner; and that it was not a material misrepresentation. Reference also made to 1 Hall 41.
A misrepresentation or concealment which will affect a policy, must be one material to the risk: 11 Barb. S. C. Rep. 633. Such concealment is for the jury: 6 Binn. 224; and not to be presumed: 3 Yeates 30.
One may insure in his own name the property of another, for the benefit of the owner, without his previous authority, and it will enure to the benefit of the party intended to be affected, upon his adoption of it even after a loss occurred: 9 Barr 198; 2 Am. Leading Cases 480.
G. W. Biddle, for defendants.—It was admitted that a partial or qualified interest in property may be insured, but that the nature of the interest must be defined at the time of effecting the insurance, and it should be expressed in the policy: 2 Peters' Rep. 25, 46 to 50; 10 Peters 507, 515-16; 16 Id. 495, 505.
The plaintiff was not owner of the building, except so far as he was a stockholder. He was merely a creditor without any lien upon the property. The Company was not incorporated, and had built upon vacant land belonging to the state. Each stockholder could transfer only his own interest, and the resolutions were not signed by Strickland, who, it did not appear, had ever ceased to be a stockholder.
The assignment was not to the plaintiff alone, but to him and the other creditors, and there were others.
Though it does not appear that the party called himself absolute owner of the premises when the insurance was effected, the issuing of the policy to him in the ordinary way, is conclusive on this point. It is not material that the application for insurance should expressly mention the building as belonging to the assured; an omission to describe the title as it exists at the time, whether proceeding from ignorance or design, is fatal to his claim for damages. That he called himself exclusive owner, is to be inferred...
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