Tyree v. Va. Fire & Marine Ins. Go
Decision Date | 16 February 1904 |
Court | West Virginia Supreme Court |
Parties | TYREE . v. VIRGINIA FIRE & MARINE INS. GO. |
INSURANCE—INSURABLE INTEREST—APPLICATION—FALSE STATEMENTS—CONDITIONS OF POLICY.
¶ 1.See Insurance, vol. 28, Cent. Dig. § 153.
3. An insurance policy provides that, "if the title or interest of assured is less than the entire, absolute, unconditional, unincumbered, fee-simple ownership, " the insurance company shall not be liable under the policy. Such provision is reasonable, and, if the insured has not such title or interest, no recovery can be had on the policy.
(Syllabus by the Court.)
Error from Circuit Court, Greenbrier County; J. M. McWhorter, Judge.
Action by W. F. Tyree against the Virginia Fire & Marine Insurance Company. Judgment for plaintiff. Defendant brings error. Reversed.
Williams & Dice, for plaintiff in error.
Gilmer & Gilmer and Preston & Wallace, for defendant in error.
The Virginia Fire Insurance Company issued a policy to W. F. Tyree insuring a house and some furniture. The policy is in Tyree's name. The policy contains a clause that the company should not be liable under it "if the title or interest of assured is less than the entire, absolute, unconditional, unincumbered fee-simple ownership" in Tyree. The land was the separate estate of his wife. He built the house upon it at his own expense, and lived in it with his wife. When Tyree applied to the agent for insurance, Tyree says he said to the agent, "I want my house insured, " but the agent did not interrogate him as to his title. There is controversy only as to the loss from destruction of the dwelling house. The company tendered return of the premium. Tyree brought suit on the policy, recovered verdict and judgment for $1,875 of the $2,000 insurance on the house, and the company brought the case to this court
A vital question is, had Tyree an insurable interest in the dwelling house, it being his wife's separate estate? I am perplexed upon the question. 16 Am. & Eng. Ency. Law, 846. "When there is no interest at all to be protected, a policy will be invalid, as counter to the spirit and purpose of the contract, as well as against public policy." "When the insured has nothing to lose, but everything to gain, by the event insured against, it would be dangerous and demoralizing to subject the insured to so great a temptation to destroy the property or the life upon which the insurance is effected." May on Ins. §§ 74, 75. Joyce on Ins. § 1049. Under this statement it is hard to say that he has an insurable interest in this state. The wife has by statute power to lease, take all rents and profits to her sole use, and the husband has no control over her separate estate, does not take by descent and has no right ofpossession by law during marriage, and has no curtesy initiate. The able jurist Judge Cooley said that, if the husband could insure in his own name his wife's property, So was the decision. Agricultural Ins. Co. v. Montague, 38 Mich. 548, 31 Am. Rep. 326. This holding is sustained by Trott v. Woolwich Co., 83 Me. 362, 22 Atl. 245, holding that a policy issued on a dwelling in the name of the husband when title was in his wife, the company not being informed that he was not the owner, is void. The reasons are fully stated in Clark v. Dwelling House Ins. Co., 81 Me. 373, 17 Atl. 303. Traders' Ins. Co. v. Newman, 120 Ind. 554, 22 N. E. 428; Traders' Ins. Co. v. Barracliff, 45 N. J. Law, 543, 46 Am. Rep. 792, is to the reverse. American Central Co. v. McLanathan, 11 Kan. 533, cited...
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