Bailey v. Liverpool London & Globe Insurance

BROADDUS, P. J. — This is a suit on a policy of insurance against fire. The defendant issued a policy insuring plaintiff against loss by fire for a period of five years, from the 9th day of March, 1901, to the amount of $300, on his house, described as a “one story frame shingle roof dwelling house, etc., situated in rear of No. 1012 Locust street, Kansas "City, Missouri.” The house was totally destroyed by fire; proof of loss was duly made, and payment of the [595] amount of insurance demanded and refused by defendant. \ The defense to the action is, that the house was insured as a dwelling, whereas, it was used as a place for the manufacture of candy; and that defendant did not insure buildings used for factory purposes. Defendant alleges in its answer that, had it known or believed that said building was not a dwelling house, oB that it was used as a candy factory, the application for insurance would have been rejected, and, if such knowledge had come to defendant at any time before the destruction of the building, the policy would have been cancelled. It is further set up as a defense that plaintiff well knew, at the time application for insurance was made, that the building was used as a candy factory; and that he deceitfully concealed said fact from defendant for the purpose of obtaining the policy and inducing the defendant unwittingly to assume a risk of greater hazard than it would have assumed at any price. The facts are, that the plaintiff was the owner in fee of the lot on which the house was situated, and that Don T. Edwards was the owner of a lease from him of the lot for ninety-nine years. The contract for the lease provided that Edwards should insure the house for plaintiff’s benefit. Edwards and J. Gr. Brownson, defendant’s agent, were friends. Edwards informed Brownson, who was soliciting business for defendant, that he wanted the property insured, and the latter, at the request of the former, went to see the house, but did not enter it and judged from its appearance that it was a dwelling house and issued the policy in controversy. It was also shown that Edwards himself did not know that the house was occupied as a candy factory. He owned other property in the city. He lived in Kansas, over two hundred miles distant, and leased his property through an [596] agent, and did not know of the nse to which the house was put. After the close of all the testimony, the court, at the instance of defendant, instructed the jury to find for defendant, whereupon plaintiff took a nonsuit with leave to move to set it aside. Plaintiff filed his motion to set aside the nonsuit in due time, which the court overruled and rendered judgment accordingly. Plaintiff appealed. There is no question of false representations in issue, hut the sole question is,'did the plaintiff obtain the insurance by knowingly and falsely concealing the fact that the building was not a dwelling house, but a factory building? This was a question of fact, but it seems to have been treated as a question of law by the trial court. The burden was upon the defendant to prove that the plaintiff or Edwards, who obtained the policy, knew at the time that the same was issued that the house was used as a candy factory. If defendant introduced any such evidence, it was at the most merely inferential. On the other hand, plaintiff’s evidence was positive that Edwards did not know that the house was used for a candy factory, and that Brownson, defendant’s agent, had the opportunity of informing himself as to that when he went to inspect it. The evidence thus shows, instead of fraudulent concealment upon the part of Edwards as to the character of the house, gross negligence upon the part of defendant’s agent, who was deceived as to the truth of the matter by assuming, from appearance, that the house was in fact a dwelling. All the evidence of any probative force goes to show that the plaintiff did not fraudulently conceal the fact that the house was used as a factory, but that the fault as to that matter lays with Brownson, defendant’s agent. The plaintiff was entitled, at least, to have the issue submitted to the jury, as the evidence was over [597] whelmingly in his favor. This was the only issue in the case. The plaintiff asks this court to enter up a judgment in his favor, but, in view of the facts and circumstances in evidence, the credibility of plaintiff’s witnesses may be a question for the jury. Reversed and remanded. All concur.