Garver v. Hawkeye Ins. ( 1886 )

Seevers, J.

The property insured was destroyed by fire, and consisted of “one frame barn, hay, grain, mowing-machine, wagons, carriages, farming utensils, and one threshing-machine in said barn; also work horses and live-stock in barn-yard or on farm, — all situated and being in the-quarter, section 36, township 78, range 34, county of Polk, Iowa.” In the application for insurance the property is described substantially as above stated, and among other questions asked and answered in the application by the assured is the following: “Are you the sole and undisputed owner of said land and the property to be insured?” This question the assured answered, “Yes.” The statements in the application were, by both the policy and application, made warranties. The assured was the owner of a life-estate only in the real estate.

1. raua msuranee: sole iaiseerepresentation. I. That the assured had an insurable interest in the property insured will be conceded, if his interest therein had been correctly stated in the application. _ J . Tiie question to be determined is materially differeut. It is whether, because of a misdescription matei<ial to the risk, there can be a recovery on the policy. The precise question we are required to determine is, whether the owner of a life-estate is the “sole and undisputed owner” of real estate. In Davis v. Iowa State Ins. Co., 67 Iowa, 494, it was held that the owner of a life-estate did not own an “absolute interest” in real estate; and in Leathers v. Farmers' Mut. Ins. Co., 4 Fost., 259, it was held that a tenant by the curtesy in right of his wife “was the owner of an estate for his own life,” and therefore was not the “owner of the buildings insured.” In Bouvier’s Law Dictionary the owner of property is said to be one “who has dominion of a thing, real or personal, corporeal or incorporeal, which he has the right to enjoy, and to do with as he pleases, even to spoil or destroy it as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right.” The owner of a fee-simple title to real estate may commit waste, but the owner of a life-estate cannot lawfully do so. /Now, what does “sole owner” meau, or what did the parties understand thereby? Evidently, we think, they meant, and must have understood, that the assured had the fee-simple title. “Sole owner” must mean, it seems so us, that no one else has or owns an interest in the real estate. If one should state that he was the sole owner of real estate, describing it, the hearer would understand that he owned all there was or could be owned; that no one else had any interest therein. If one should covenant in a deed that he was the sole owner of the real estate, such a covenant would be broken if he owned a life-estate only. There is no distinction between “sole owner” and the owner of an “absolute interest” in real estate. A sole interest and absolute interest mean the same thing. ;l

a____pre_ ™on™actSnotS: divisible. II. The court found and determined *that there could be a recovery for the value of two horses insured by the policy; and we are required to determine whether the of insurance was an entire or separable contract. If it was the former, then there can be no recovery; if the latter, then there may be. There was but one policy, and the premium paid, or agreed to be paid, was a gross sum; that is, the premium was paid for the insurance of the whole of the property, but there was a separate valuation or amount of insurance placed on the barn and each of the articles or things above mentioned. For instance, the policy provides that the total amount of insurance is $3,800 “on the property hereinafter described, namely: One frame barn, No. 1 on diagram on application, $1,000; * * * No. 3, on work horses, not to exceed $75 on each” Where there are specifications of separate premiums paid for such insurance, it will be conceded that there is a conflict in the authorities as to whether the contract is entire or separate, but we think there is no such conflict where the premium is a single or gross sum. It seems to us this must be so, for there is but a single contract, and but a single consideration, and such a contract must be entire and not divisible. In consideration of the whole premium, all the property named in the policy is insured. One party to such a contract cannot, at his pleasure, make it divisible or entire as his interest may appear. When entered into, it was either the one or the other.

The facts in Plath v. Minnesota Farmers’ Mut. Fire Ins. Ass’n, 23 Minn., 479, were precisely the same as in the case at bar, and it is there said: “It is well settled by a uniform current of authority that a contract of insurance of this character is an entirety and indivisible; the sole effect of the apportionment of the amount of insurance upon the separate and distinct items of property named in the policy being to limit the extent of the insurer’s risk, as to each item, to the sum specified.” In support of this view, a large number of adjudged cases are cited. In addition thereto, see Schumitsch v. American Ins. Co., 48 Wis., 26; S. C., 3 N. W. Rep., 595; and Ætna Ins. Co. v. Resh, 44 Mich., 55; S. C., 6 N. W. Rep., 114. The judgment of the circuit court on the plaintiff’s appeal is affirmed, and on the defendant’s appeal, reversed.