Craig v. United States Fidelity & Guaranty Co. , 11 Cal. App. 2d 644 ( 1936 )

McCOMB, J., pro tem.

This is an appeal from a judgment in favor of defendant after a trial before a court without a jury.

The conceded facts are:

Plaintiff, acting through her duly authorized agent, applied to defendant for a burglary insurance policy, which was duly issued October 10, 1934. In answering item No. 13 in the application for insurance, reading, “No burglary, theft, or robbery insurance applied for or carried by assured has been declined or cancelled by any company within the last five years except as herein stated,” the agent declared, “No exceptions.” This statement was in fact false, because a policy of burglary insurance held by plaintiff had been can-celled on or about July 20, 1934, by the Aetna Insurance Company.

November 6, 1934, plaintiff’s premises were burglarized. Thereafter, upon learning of the false statement, defendant cancelled its policy of burglary insurance with plaintiff. It is to recover for this loss that the suit was commenced.

The sole question necessary for us to determine is:

Does a false statement in an application for burglary insurance, that prior burglary insurance ■ carried by plaintiff has not been cancelled within the preceding five years, constitute a valid defense to a suit for recovery on the policy?

It is well settled that, when a statement in the application for insurance is declared by the policy to be a warranty and the insured declares the statement is absolutely true, the falsity of such statement voids the policy ab initio (Wolverine Brass Works v. Pacific Coast Casualty Co. of San Francisco, 26 Cal. App. 183, 184 [146 Pac. 184]; Kahn v. Royal Indemnity Co., 39 Cal. App. 180, 183 [178 Pac. 331]), and the question of the materiality of the false statement is removed from the consideration of the court. One of the principal reasons for such warranty is to preclude all controversy as to the materiality or immateriality of the statement. (McKenzie v. Scottish Union & National Ins. Co., 112 Cal. 548, 555 [44 Pac. 922].)

In the instant case paragraph R of the insurance policy reads, “The statements in items 1 to 13 inclusive in the declarations are made the basis of this insurance and the assured by the acceptance of this policy warrants them to be true. This policy is issued in consideration of such statements and the payment of the total premium.”

Item 13 of the application for insurance is, “No burglary, theft, or robbery insurance applied for or carried by assured has been declined or cancelled by any company within the last five years except as herein stated.” The answer was, “No exceptions.” It is conceded that the answer to this declaration was false.

The answer to the question in the application for insurance was expressly declared to be a part of the policy of insurance and a warranty. Thus, since it was untrue, the policy was void ab initio and judgment was properly entered for the defendant.

Because of our conclusion it is unnecessary for us to consider the other propositions advanced by plaintiff.

The judgment is affirmed.

Wood, J., concurred.