Harvey v. Pawtucket Mutual Fire Insurance

145 N.E. 35, 250 Mass. 164, 1924 Mass. LEXIS 1104

• Court: Massachusetts Supreme Judicial Court
• Decided: October 18, 1924
• Status: Published

Opinion

Pierce, J.

This is an action of contract to recover for the total loss of an automobile upon a fire insurance policy. It was agreed at the trial that proof of loss and all conditions precedent to bringing suit had been complied with.

Under the heading, “ Exclusions,” the policy stated, among other conditions, “2. It is a condition of this policy that it shall be null and void. ...(c) If the interest of the assured in the property be other than unconditional and sole ownership, or if the subject of this insurance be or becomes encumbered by any lien or mortgage except as stated in Warranty No. 3, or otherwise endorsed hereon.” At the time the insurance policy issued, one Austin held a mortgage upon it which had been given by the plaintiff sometime previously. Austin, without the knowledge of the plaintiff, had insured his mortgage interest with an insurance company other than the defendant company. This policy was in force at the time of the fire and has not been paid. This insurance of the mortgagee was not in violation of the condition that the company shall not be liable “ (b) If at the time a loss occurs there be any other insurance . . . which would attach if this insurance had not been effected.” It was an insurance obtained by the mortgagee on his own interest in another insurance company and it could not have been controlled or prevented by the plaintiff. Wheeler v. Watertown Fire Ins. Co. 131 Mass. 1, 8, 9.

Whether the words “ The automobile described is fully paid for by the assured and is not mortgaged or otherwise encumbered, except as follows,” contained in paragraph “ 3 ” of the “ Warranties,” are to be treated as a declaration of fact by the assured, or as a question of the insurance policy to be answered by the assured in a blank space beneath these words, and whether, if not a declaration of fact, an answer thereto was waived by the issuance of the policy without such an answer, need not be determined; because in any event it sufficiently appears that the interest of the assured in the property insured was other than that of unconditional and sole ownership. The defect in the plaintiff’s title went to the essence of the contract of insurance and the policy under its conditions never took effect. Ballard v. Globe & Rutgers Fire Ins. Co. of New York, 237 Mass. 34. Dawsons, Ltd. v. Bonnin, [1922] 2 A. C. 413. The provisions of St. 1907, c. 576, § 21, now G. L. c. 175, §186, are not applicable where as here sole and unconditional ownership is a condition precedent to the creation of the alleged contract. Ballard v. Globe & Rutgers Fire Ins. Co. of New York, supra.

The verdict for the defendant was properly ordered; and judgment is to be entered for the defendant in accordance with the terms of the report.

Judgment for the defendant.