UNITED STATES FIRE INS. CO. OF THE CITY OF NEW YORK v. Sullivan

• Decision Date: 16 March 1928
• Docket Number: No. 7902.,7902.
• Citation: 25 F.2d 40
• Parties: UNITED STATES FIRE INS. CO. OF THE CITY OF NEW YORK v. SULLIVAN.
• Court: U.S. Court of Appeals — Eighth Circuit

25 F.2d 40 (1928)

UNITED STATES FIRE INS. CO. OF THE CITY OF NEW YORK v.SULLIVAN.

No. 7902.

Circuit Court of Appeals, Eighth Circuit.

March 16, 1928.

Frederick D. Silber, of Chicago, Ill. (Samuel Levin, of Chicago, Ill., Clinton Brome, of Omaha, Neb., and Herbert W. Hirsh, of Chicago, Ill., on the brief), for plaintiff in error.

Clement L. Waldron, of Omaha, Neb., for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

STONE, Circuit Judge.

This is an action upon a policy of fire insurance for loss of a dwelling located in Nebraska.The trial court sustained a motion for judgment on the pleadings.The insurance company sues this writ of error.

The petition set forth a cause of action on the policy.The amended answer admitted the policy, loss and demand.It continued as follows:

"4.Further answering, and by way of affirmative defense, this defendant alleges the fact to be that on or about the 26th day of May, 1924, the plaintiff herein, Joseph B. Sullivan, was then and for a long time prior thereto had been the owner of and resided in said dwelling house located on what is described as the Southwest Quarter (SW¼) of Section Twenty-Four (24), Township Twenty-Nine (29), range Seven (7) in the County of Dakota, in the State of Nebraska, being more than Sixty (60) miles from the City of Omaha, Nebraska; and the plaintiff then knew and considered said dwelling house to be of the value of Twenty-Five Hundred Dollars ($2,500.00); and that said plaintiff on or about said 26th day of May, 1924, well knowing said facts, applied to the agent of the defendant, in the City of Omaha, Nebraska, for the issuance to him, the plaintiff, of a policy of insurance to indemnify the plaintiff against loss and damage by fire to said dwelling house and it then and there became and was the duty of the plaintiff to advise, inform and notify said agent of the defendant that the actual value of said dwelling house did not exceed Twenty-Five Hundred Dollars ($2,500.00), but the plaintiff, not regarding his duty in that behalf, then and there, with the intention and for the purpose of inducing the defendant, by and through its said agent to issue to him, the plaintiff, a policy of insurance indemnifying the plaintiff against loss and damage by fire, to said dwelling house, in the sum of Five Thousand Dollars ($5,000.00), in the event of the total destruction thereof; and with the further intention thereby to cheat and defraud the defendant of Twenty-Five Hundred Dollars ($2,500.00), in the event of loss and damage in the manner and to the extent aforesaid, and so intending to deceive, defraud and injure the defendant, he, the plaintiff, then and there made and delivered to said agent of the defendant, an application and statement in writing signed by the plaintiff, in and by which said application and statement the plaintiff falsely and fraudulently warranted and represented to the defendant, as a fact, that said dwelling house was then and there of the actual value of Five Thousand Dollars ($5,000.00), and wilfully refrained from informing said agent of the defendant that the actual value of said dwelling house at that time did not exceed the sum of Twenty-Five Hundred Dollars ($2,500.00), as the plaintiff then and there well knew.

"5.And the defendant further avers that it did, by its said agent, then and there believe and rely upon the said written application, warranty and representation of the plaintiff, and the value of said dwelling house therein set forth as aforesaid, to be a statement of fact, and not the opinion of the plaintiff, as to said value, so that the defendant and its said agent was then and there lulled into a feeling of security as to the value of said dwelling house, by reason whereof, it did not make its own independent investigation of the value thereof, nor did its said agent or the defendant know anything relating to said dwelling house, except as then given to its said agent by the plaintiff.

"6.And the defendant further avers that induced by and in sole reliance upon said false and fraudulent warranty, representation and statement of fact, by the plaintiff, it did, on the 26th day of May, 1924, by its said agent, execute and deliver to the plaintiff, the policy of insurance set forth in plaintiff's petition, in and by which the defendant indemnified the plaintiff against loss and damage by fire to said dwelling house, in the amount of Five Thousand Dollars ($5,000.00), in the event of a total destruction thereof.

"7.And the plaintiff further avers that said dwelling house, at the time of its said total destruction by fire, as alleged in plaintiff's petition, had not been improved since said written application was delivered to said agent of the defendant, as aforesaid; and except for ordinary wear and tear, was in the same condition at the time of said fire as at the time of the delivery of said application to said agent of the defendant, and was of the value of Twenty-Five Hundred Dollars ($2,500.00), as the plaintiff then and there well knew.

"8.And the defendant further avers the fact to be that if the plaintiff, at the time of his securing said policy of...