Tebeau v. Globe & Rutgers Fire Insurance

WILLIAMS, J.

This is a suit upon a policy' of fire insurance. Trial was had before the circuit court of Jackson County, without a jury, resulting in a.judgment in favor of the plaintiff in the sum of $8,400. Thereupon defendant duly perfected an appeal. The important facts may be summarized as follows:

The policy of insurance was issued for one year beginning December 9, 1911. The fire occurred September 22, 1912. The property covered by insurance was the “frame, concrete and brick foundation base-ball stand including bleachers, club-house, ticket-office and fencing,” located at Olive and Twentieth Streets, Kansas City, Missouri. The total loss from the fire amounted to $20,000, $14,000 of which was covered by insurance, including this policy for $8,000. Said policy contained the following paragraphs:

“ (1) This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact and circumstances concerning this insurance or the subject thereof; or if the interest *631 of the insured in the property he not truly stated therein. .. .

(2) This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance he a building on ground not owned by the insured in fee simple.”

Originally the plaintiff leased the land, upon which this ball park and improvements were located, from the owner, Thomas S. Ridge. The lease contract also contained an option of purchase clause^ in favor of the plaintiff. Plaintiff owned all of the insured property at the time of the fire and concerning this there is no dispute; hut defendant does deny that plaintiff owned the fee simple title to the land, within the meaning of the insurance clause. On this point, the evidence was that, in 1909, plaintiff exercised the option of purchase given him by the lease, but that Thomas S. Ridge refused to convey the property. Mr. Ridge’s wife did not join in the lease or option contract. Plaintiff then brought suit for specific performance against Ridge, and on April 11, 1910 (which was before this policy was issued) the circuit court of Jackson County found in favor of plaintiff in the suit for specific performance and decreed the title to this land to he in the plaintiff, upon the payment of the purchase price of some $68,000. The plaintiff, thereupon, immediately deposited the purchase money in court. Afterwards the plaintiff filed a motion, in that cause, asking the court to allow him a diminution of the purchase price called for in the option of purchase by reason of the fact that Mrs. Ridge had an outstanding dower right which could not be controlled by the specific performance decree. The court overruled that motion and both the. defendant Ridge and the plaintiff Tebeau duly appealed, from the judgment of the circuit court, to this court. The case was pending here on appeal at the time the insurance policy, in question, was issued and also at the time the fire occurred. *632 Afterwards the case was decided here. [Tebeau v. Ridge, 261 Mo. 547 .]

The vice-president of the defendant company testified, by deposition, that defendant did not know that the property was involved in litigation at the time the policy was issued, and had it known so it would not have issued the policy.

One other witness testified for the defendant that it was the custom of insurance companies not to write policies on property which was involved in litigation.

In rebuttal, plaintiff offered evidence tending to show that it was the custom of insurance companies to write insurance on property involved in litigation of the character here mentioned.

There was also evidence showing that after this fire plaintiff rebuilt the grandstand and baseball properties and that, thereafter; insurance companies were informed of the pending litigation; but, notwithstanding said information, they issued policies on said property and at a reduced rate.

The only declaration of law offered in the case was a declaration in the nature of a demurrer to the plaintiff’s evidence, offered by defendant; and the sole question involved upon this appeal is whether or not plaintiff made out a case under the pleadings and evidence.

Property Insured.

I. The policy provides that it shall be yoid “if the interest of the insured in the property be not truly stated.” What is the meaning of the word “ property” in the above clause? Does it include property, other than that covered by the policy, or does it simply mean the property which is in fact protected by the policy? That the latter is the correct meaning we entertain no doubt. The uncontroverted evidence in this record shows that plaintiff was the unconditional owner of the property which was the subject of insurance at the time the policy was issued and later when the fire occurred. We, therefore, disallow appellant’s contention that the insured’s interest in the property was not truly stated.

*633

Interest of the Insured.

II. The policy further provides: “This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the interest of the insured be other than unconditional and sole-ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple.” What is the meaning of the phrase “interest of the insured” in the above clause? Here again, we are of the opinion, it can mean nothing other than the interest of the insured in the property insured, and that it is not intended as including any interest which the insured might have or not have in the ground upon which the property is located. It is to be presumed, absent language in the policy clearly showing a contrary intention, that the term “interest of the insured” was intended as referring to the interest of the insured in the property which is the very subject-matter of the policy and the very property which the policy is made to cover. It will be noticed by reading the latter portion of the above' clause that when the interest of the insured in property other than that covered by the policy is intended to be included clear and certain language is used showing that such other property is to be considered. If it should be held that the term “interest of the insured” is sufficient in its scope to cover the interest of the insured in the ground upon which the insured property is located, then it would follow that the use of the subsequent clause “or if the subject of insurance be a building on ground not owned by the insured in fee simple” was wholly unnecessary and performed no useful function in the policy. Since as above stated the evidence was sufficient to justify the court in finding that the interest of the insured (in the subject of -insurance) was that of unconditional and sole ownership, we likewise rule this point against appellant’s contention.

*634

Outstanding Inchoate Dower.

*633 Was the ground, upon which these buildings were located, owned by the insurer in fee simple within the *634 meaning of said policy? In other words, did ^ie outstanding contingent dower right of Mrs. Ridge render the title of the insured less, than the fee simple title within the contemplation of said policy? After a careful review of the authorities, we have reached the conclusion that the fee simple title to said land was vested in the insured, at the date of the policy and subsequent loss,' notwithstanding the existence of such outstanding contingent right of dower.

The correct rule here applicable, and which appears to have the support of the great weight of the authorities on the point, is stated in 2 Clement on Fire Insurance, page 184, as follows:

“The fact that the insured has title to the land on which the building insured is situated by a deed from a married man whose wife did not join in the conveyance, does not prevent the insured from being the owner in fee simple; the estate owned by the wife who did not sign the deed is ’an estate in the land itself, and not a mere incumbrance resting upon it, but it is not until the death of the husband that the wife has any claim, legal or equitable, upon the real estate so conveyed, and if she does not survive her husband, her estate terminates.”

To the same effect are the following authorities: 2 Cooley, Briefs on the Laws of Insurance, page 1352; 16 Am. & Eng. Ency. Law, 931; 19 Cyc. 698 (note); Insurance Co. v. Bevis, 18 Ind. App. 17 ; Insurance Co. v. Kloeber, 31 Gratt. 749 ; Commercial Ins. Co. v. Spankneble, 52 Ill. 53 , l. c. 57.

Concealment.

III. The policy further provides: “This entire policy shall be void if the insured has concealed or misrepresented in writing or otherwise any material fact or circumstance concerning th¿ insurance or the subject thereof.”

Appellant contends that since the insured failed to inform the appellant of the fact that an appeal was pending from the aboye mentioned decree of the Jack *635 son County Circuit Court, in the specific performance suit of Tebeau v. Ridge, that such failure upon the part of the insured amounted to a concealment of a material fact within the meaning of said policy. We are unable to agree with this contention.

In the ease of Boggs & Leathe v. Insurance Co., 30 Mo. 63 ,. the same being the main case relied upon by appellant in support of the above contention, it was held that a concealment was not material “unless the disclosure of the facts concealed would have induced the insurer to decline the risk or enhance the premium.” And it was further therein held: “The question of the materiality or immateriality of the fact is always for the jury.” [Id., l. c. 67.]

In the case at bar there was evidence upon the part of plaintiff tending to show that the pendency of said litigation was an immaterial fact in determining the hazard of the risk or the amount of premium. There was evidence offered by appellant to the contrary. This was a law suit tried before the court sitting as a jury. He found for plaintiff and we are, therefore, to presume that he found that the fact was not a material one. There having been sufficient evidence to support such a finding it disposes of the point now urged by appellant and it becomes unnecessary to discuss the proposition as to whether the acts of the insured, as disclosed by this record, would or would not justify a finding that there was or was not concealment, within the meaning of said policy.

The judgment is affirmed.

All concur.