Nat. Insurance Co. v. Welbon Motor Car Co. , 1923 Ohio Misc. LEXIS 1735 ( 1923 )

CHITTENDEN, J.

Epitomized Opinion

This was an action brought by he Welbon Motor Car Company to recover upon a policy of insurance upon an automobile insuring against loss by fire and theft. The plaintiff claimed that the automobile was stolen and burned. The interest of the plaintiff in the automobile was that of mortgagee, there being due to him at the time the sum of $603.31. In an amended petition the palintiff also set up the fact that the policy was issued for the purpose of protecting the mortgagee but that by mutual mistake the application was made to protect the mortgagor, as well as the plaintiff. The plaintiff in addition to asking for judgment also asks for reformation of the policy. The Insurance Company set up various defenses among which was the claim that the policy was void because the mortgagor had obtained another policy of insurance upon the car without giving the defendant company notice of that fact. The defendant company also contended that the machine was stolen when it was unlocked and that the insurance policy only covered theft of the automobile when it was locked. The case was tried before Judge B. F. Ritchie of Toledo and resulted in a verdict for the plaintiff in the sum of $444. The Insurance Company prosecuted error. Held:

1. That the verdict was not manifestly against the weight of the evidence.

2. In order to constitute double insurance under a condition in an insurance policy against double insurance, the insurable interest of the policy in question and that of the contract claimed to avoid it under the clause referred to must be identical; and as one policy was to protect the mortgagee and the other to protect the mortgagor, it cannot be claimed that there was a violation of the double insurance provision of the policy.