Liverpool, London & Globe Insurance v. McGuire

Campbell, J., delivered the opinion of the court. The petition of the plaintiff in error for removal of the cause to United States court was properly refused, because it. does not show that either party was a citizen of Mississippi. Insurance Co. v. Francis, 11 Wall., 210. It was not error to allow plaintiff below to testify to the231 verbal representations be made to tbe agent of defendant, at tbe time of effecting insurance, as to tbe manner in wbicb tbe bouse insured was occupied by bim as a dwelling bouse — i. e., that it was then vacant because of absence of Ins family, and would be tbe next summer. Flanders’ Fire Ins., pp. 303-304. It was not error to allow plaintiff to testify that be was tbe sole and exclusive owner of tbe bouse. Tbe objection was not specifically made to tbe testimony as being by parol, without a proper foundation laid for it, and might properly have been overruled on this ground. But it was allowable for plaintiff to show, by parol, tbe existence of the facts as to tbe dealings between himself and Beirne, wbicb constituted bim beneficially, practically, and equitably, if not strictly in law, tbe sole and exclusive owner of tbe bouse insured. Although tbe land was conveyed to McGuire & Beirne, as partners — as McGuire speaks of them — if afterwards they erected another bouse on tbe land, besides that insured, and dissolved partnership and divided tbe land, McGuire taking tbe one bouse and Beirne tbe other, it is not admissible for tbe insurance company to defeat McGuire’s recovery on tbe policy of insurance issued to bim on tbe bouse assigned to bim, in tbe division between bim and Beirne, on the ground of bis not being tbe sole owner of tbe bouse. According to bis evidence be was such sole owner when tbe policy was issued and when tbe loss occurred, and, as tbe facts which constituted McGuire such sole owner rested in pais, it was competent for bim to prove them .by bis own testimony. Parties applying for insurance are not called on to settle questions of title with very great precision. Flanders’ Fire Ins., p. 298, et seq. In this case there was no representation of title whatever, in tbe application for insurance, as shown in evidence. Tbe bouse was spoken of as “my residence” by tbe applicant, but nothing was said about “title,” and there is no condition in tbe pobcy wbicb relates to tbe matter of title. In such case tbe silence of tbe insured as to tbe precise condition of bis [232] title was not a ground of complaint by the company. Flanders’ Fire Ins., 277. The only point of view in which the question of sole and exclusive ownership became important in this case is not as to the right of McGuire to recover on the policy, but as to how much he should recover — whether he should recover the whole, or only as having a half interest in the house. His right, upon the facts, to recover for the whole loss, is clear, and it was right to allow him to testify to the facts whieh entitled him to recovery of the whole. It was proper to refuse the testimony of the witness, Chamberlain, offered as an expert, to prove that a risk is increased by a dwelling-house becoming vacant. This policy contains no stipulation or condition against the house becoming vacant. The house is described in the policy as the “ dwelling-house occupied by” the insured. That was not a warranty that it should remain occupied. Flanders’ Fire Ins., 256, note 2, and authorities therein cited; ib., 485. There was evidence that, when the policy was applied for, the agent of the company was distinctly informed by the applicant that the house should be temporarily unoccupied during the next summer, by reason of the absence of the family of the insured, as it'was so unoccupied at the time of obtaining the policy. As this testimony showed in what sense the contracting parties employed the words “ occupied” as a “ dioelling-house,” and in what way it was understood that the house was a “ dwelling-house occu.pied,” it was not relevant to the issue between the parties to prove that vacancy increases a risk. Grant that it does, it was immaterial in this case, if it was the right of the insured to vacate the house for a time without forfeiting the policy, and there was no denial of the truth of the statement of McGuire that such was his right, as resulting from his representation to the agent of the company. Besides, this policy contains no express condition against the house becoming temporarily unoccupied by the absence of the family during the summer, and, if there had been no evidence [233] ■of a representation by the insured to the agent that the house would be so vacant in the summer, we are not prepared to hold that, under the general terms of the second condition of the policy, the right to recover on it for a loss was forfeited by reason of the house having been unoccupied during the summer, while the family of the insured was absent. The 3d instruction given for plaintiff below must have been based on some evidence not contained in the bill of exceptions. It was improper to give it upon the evidence presented by the record, but we do not think it possible that the jury could have been misled by it. We find no error in the others. The 6th instruction asked by defendant below should have been given, but its refusal was cured by the 8th instruction, which was given, and applied directly to the disputed matter between the parties. The 6th instruction is that, unless plaintiff was the sole and exclusive owner of the house, he could not recover. The 8th is that, if plaintiff was owner of only a half interest, he could recover only for one-half the loss. There was no error in overruling the motion for a new trial. The judgment is affirmed.