Womble v. Dubuque Fire & Marine Ins. Co.
| Decision Date | 30 October 1941 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | JAMES H. WOMBLE & others v. DUBUQUE FIRE AND MARINE INSURANCE COMPANY. |
September 18, 1941.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Insurance, Fire insurable interest, increase of risk. Evidence, Presumptions and burden of proof; Opinion: expert. Adverse Possession or Use. Practice, Civil, Exceptions: whether error harmful. Error, Whether error harmful. Witness, Expert.
A finding was warranted that an unincorporated religious association, which for a number of years had occupied and used a church building owned by an incorporated "church extension society" of the same denomination, had a sufficient insurable interest under a fire insurance policy issued to it on the building.
One, who by occupancy and use of a building to which he had no title had an insurable interest therein at the time a fire insurance policy was issued to him, could be found not barred from recovery on the policy where, before a loss by fire, his occupancy and use had ceased but he had acquired title to the property.
In an action on a fire insurance policy, the defendant had the burden of proving breach of a condition of the policy voiding it for increase of the risk.
Evidence, merely that after damage by fire a church building covered by fire insurance had been left unoccupied and unrepaired with a large opening in the roof, did not require a finding that thereby the risk was increased so as to bar recovery under the policy for further loss due to a second fire a year later.
A finding, that a religious association had acquired title by adverse possession to a church building owned by a religious corporation of the same denomination, was not warranted by evidence merely of occupancy and use of the building by the association for less than twenty years.
In an action on a fire insurance policy where there was a verdict for the plaintiff but the record did not disclose on what ground the jury found an insurable interest in him, error in charging the jury that the evidence would warrant a finding of such an interest through a title gained by adverse possession was prejudicial to the defendant although there was evidence warranting a finding of an insurable interest through occupation of the property.
The exclusion of certain opinion testimony was not error since the judge was not obliged to find the witness qualified as an expert.
CONTRACT. Writ in the District Court of Springfield dated July 5, 1939. Upon removal to the Superior Court, the action was tried before T J. Hammond, J. There was a verdict for the plaintiffs in the sum of $2,052. The defendant alleged exceptions.
W. Hartstone, (H.
N. Hartstone with him,) for the defendant.
H. M. Ehrlich, (A.
H. Tavernier & J.
L. Dowd with him,) for the plaintiffs.
The plaintiffs are "trustees of Loring St. African Methodist Episcopal Church, a voluntary association, of Springfield." On September 24, 1935, the defendant issued a five year policy of fire insurance in the standard form (G. L. [Ter. Ed.] c. 175, Section 99, as amended) to "Loring St. A. M. Church and its legal representatives," covering a church building on Loring Street in Springfield, located on premises described in the conveyances hereinafter mentioned. The initials in the policy mean African Methodist. This action is brought to recover for damage to the building by a fire which occurred on January 4, 1939.
No argument has been made before us that the plaintiffs as trustees for the voluntary association are not the parties insured in whose names the action may properly be brought. There had been a previous fire on January 3, 1938, while this same policy was in force, and the defendant had paid its share of the loss to the trustees, and there was evidence that the settlement had been negotiated with them.
The defendant contends that a verdict should have been directed in its favor on the ground that the persons insured had no insurable interest on September 24, 1935, the date of the policy. If the person insured has no insurable interest in the property covered when the policy by its terms would become operative as to that property, the policy never takes effect as valid insurance on the property. McCluskey v. Providence Washington Ins. Co. 126 Mass. 306 , 308. Boston Ins. Co. v. Globe Fire Ins. Co. 174 Mass. 229. O'Neill v. Queen Ins. Co. 230 Mass. 269 , 270.
The acquisition later of an insurable interest will not cause the insurance to attach to the property. King v. State Mutual Fire Ins. Co. 7 Cush. 1, 5. Morrison v. Boston Ins. Co. 234 Mass. 453 , 456. But the insured may have an insurable interest in property in which he has no title whatever, legal or equitable. "By the law of insurance, any person has an insurable interest in property, by the existence of which he receives a benefit, or by the destruction of which he will suffer a loss, whether he has or has not any title in, or lien upon, or possession of the property itself." Eastern Railroad v. Relief Fire Ins. Co. 98 Mass. 420 , 423. Williams v. Roger Williams Ins. Co. 107 Mass. 377 , 379. Hayes v. Milford Mutual Fire Ins. Co. 170 Mass. 492 , 495. Various applications have been made of this principle. Swift v. Mercantile Mutual Ins. Co. 113 Mass. 287 , 288. Fowle v. Springfield Fire & Marine Ins. Co. 122 Mass. 191 , 193, 194. Doyle v. American Fire Ins. Co. 181 Mass.
139. Morrison v.
Boston Ins. Co. 234 Mass. 453 . Shumway v. Home Fire & Marine Ins. Co. 301 Mass. 391 , 395. And in Wainer v. Milford Mutual Fire Ins. Co. 153 Mass. 335 , at page 342, it was said that even a disseisor would have an insurable interest which he could properly describe as ownership. See Sanford v. Orient Ins. Co. 174 Mass. 416 , 422.
The evidence of the plaintiff's relation to the property insured is not as clear and precise as might be desired. Statute 1888, c. 201, incorporated the "African Methodist Episcopal Church in Springfield," "formerly known as the Loring Street Methodist Church and the Union American Church.
" None of the names mentioned in the act is the same as that of the "Church" insured in the policy. Under date of September 1, 1909, one Watson, described as secretary of the "Church Extension Society of the African Methodist Episcopal Church" gave to that society, which was stated to be a Pennsylvania corporation, a mortgagee's deed of the insured property in foreclosure of a mortgage which he recited had been given in 1883 by the "Trustees of the Union American Church" and finally assigned to him in 1899. The mortgage itself and the assignments were not in evidence. Under date of April 14, 1938, which was after the first fire and before the second fire, out of which the present action arose, "The Board of Church Extension Society of the African Methodist Episcopal Church," described as a Pennsylvania corporation, conveyed the premises by deed to the plaintiffs "as Trustees of and for the use and benefit of Loring Street African Methodist Episcopal Church." Upon the introduction in evidence of the two deeds just mentioned the judge said, "Well, title apparently was originally in these plaintiffs or their predecessors, mortgage given, mortgage foreclosed and the foreclosure sale," and both counsel assented to this statement. It further appeared that on July 6, 1938, the plaintiffs as trustees filed a petition in the Land Court for registration of their title, which in their petition they alleged they had acquired by the 1938 deed; and that registration was granted on November 15, 1938, before the second fire.
The evidence hereinbefore narrated would not warrant a finding of title in the insureds on September 24, 1935, when the policy was issued. But in addition to the foregoing there was evidence of possession. The secretary of the voluntary association "Loring St. African Methodist Episcopal Church," or "Loring St. A. M. E. Church" as one witness called it, testified that at the time of the trial he had been connected with that church for twenty-one years and had been secretary for eighteen years and was secretary of the "trustee board"; that they had been at the same location (the premises described in the policy) until the first fire; and that so far as he knew the church was not a corporation. The pastor testified that he knew nothing about any corporation having to do with the church.
The circumstances of this case are peculiar. Here, on the evidence, is an unincorporated religious association which the jury could believe had used and occupied the church edifice continuously for about sixteen years before the policy was issued in its name. During all this time, so far as appears, the title had stood in the name of an incorporated "Church Extension Society" of the same...
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