German American Insurance v. Paul , 2 Indian Terr. 625 ( 1899 )

Clayton, J.

We think the complaint in this case was sufficient. It alleged that the defendant, for a valuabld consideration, issued to plaintiff a policy of insurance, insuring plaintiff against loss by fire of certain property therein alluded to; that said property was totally destroyed by fire; that proof of loss was made; that payment thereon had not been made; and praying judgment for $1,000. Joyce, Ins. § 3665 et seq.; Mansf. Dig. §§ 5065, 5083 (Ind. T. Ann. St. 1899, § § 3270, 3288). The failure to allege value of the property and ownership was cured by verdict. Jones vs Ins. Co., 55 Mo. 342; Jefferson vs Hale, 31 Ark. 286; Chit. Pl. 673.

2. The plaintiff, as a witness in his own behalf, was asked by his counsel this question: “At the time you made out the application for insurance, — at the time you got that policy, — who did that property belong to?” This was objected to by the defendant, as calling for a conclusion of the witness. The court permitted the question, to which defendant excepted. We see no reason why the question was improper. Certainly the owner of property is competent to testify, as a matter of fact, that he is the owner. All of the property insured was personal property, obtained in various ways; and the witness after stating that he was the'owner of the property, told how he became possessed of it. His right to recover rested absolutely on his ownership, and he, ¡above all others, knew, as a matter of fact, whether he still ¡owned the property, or had disposed of it. The complaint, S inferentially at least, alleged ownership, and proof was nec-lessary to sustain that allegation.

3. The complaint alleged that the property insured ¡was totally destroyed, and that defendant had failed to pay ¡plaintiff for the loss occasioned thereby, and asked judg|ment for $1,000. Under this allegation, the value of the ¡property was properly raised, and the court did not err in admitting proof in support thereof. Joyce, Ins. § 3678; Jones vs Insurance Co., 55 Mo. 342.

4. The only question covered by this assignment, nbt heretofore considered, is that the court erred in permitting plaintiff to state, as a witness, that his wife had given him a portion of the property. This is objected to as being a communication between husband and wife during cover-ture. The court specifically stated that all communications between Paul and his wife were incompetent, but permitted him to state, and we think properly, that his wife had given him a portion of the property. It was certainly competent for the plaintiff to state that he was the owner of the property, and to state how' he became possessed of it.

5. Exception is taken to the following remark of the court: “You don’t expect to insure property for value, and refuse to pay for it simply because it is a picture of a man’s father or mother.” Counsel for defendant were trying to show that certain photographs destroyed by fire were those of plaintiff’s family, and therefore had no value. The court left the question to the jury to determine the value of the photographs, even though .they were those of members of his family.

6. The defendant sought to show that the plaintiff was guilty of fraud in concealing the fact of the insurance, because he had not told certain parties that he had taken out the insurance. We know of no rule of law or business that requires a party to publish to the world the fact that he has his property insured. The fact that he did not do so could in no way tend to show fraud, and the testimony was clearly incompetent.

7. Defendant complains because he was not allowed a full cross-examination of plaintiff. The matters referred to were in relation to transactions subsequent to the fire, and were incompetent. Nearly one-third of the record is taken up. with the cross-examination of the plaintiff, and we have been unable to find any material testimony which was excluded.

8. The witness H. M. Smith testified that he was a contractor and builder, and had been for about 15 years, and was acquainted with the value of houses in that vicinity. "We think he was clearly a qualified witness.

9. As the pleadings in the divorce suit offered in evidence were not verified, we think it doubtful whether they were admissible at all,- but no objection was made on thife ground. The court admitted all the relevant portions of the pleadings, and this is all the defendant was entitled to. Whart. Ev. § 1104.

The other errors assigned are based on instructions refused and given, and it will only be necessary to consider one. The court, over the objection of the defendant, instructed the jury as follows: “The court instructs the jury that if you believe from the evidence in this case that the defendant insurance company insured the property which the plaintiff claims was destroyed by fire, and accepted the premium from the plaintiff for said insurance, and that the said property was destroyed by fire after the policy of insurance was taken out, and before its expiration, then the condition of the liability of the defendant insurance company was complete; that it is not essential that the plaintiff was the absolute owner of the property, but that any general property or peculiar interest in the property insured is sufficient to entitle the plaintiff to recover of the defendant, unless the defendant, by the preponderance of the testimony in this case, proves that, had the true ownership been known to it, it would not have assumed the risk, or, would have charged a greater rate of premium.” We think this instruction misleading and incorrect. The testimony was conflicting as to who owned the property. It was contended, and fairly established, that the bulk of the property insured belonged to the plaintiff’s wife, and was her separate property, acquired before coverture. The question becomes pertinent then, whether in this jurisdiction the husband has an insurable interest in the wife’s separate property. We are unable to find any decision of the supreme court of Arkansas upon this subject, but other states, with statutes giving married women no greater rights and control over their seperate property than those prescribed by Mansfield’s Digest, hold that such insurable interest does not vest in the husband. Insurance Co. vs Montague, 38 Mich. 548; Insurance Co. vs Newman, 120 Ind. 554, 22 N. E. 428;, Merrett vs Insurance Co., 42 Iowa 11. Section 4621, Mansf. Dig. (Ind. T. Ann. St. 1899, § 8021), provides: “The real and personal property of any feme covert in this state acquired either before or after marriage, whether by gift, grant, inheritance, devise, or otherwise, shall, so long as she may choose, be and remain her separate estate and property, and may be devised, bequeathed or conveyed by her the same as if she were a feme sole.” And this section is in force in the Indian Territory. Under it the husband has no control over the wife’s property. In order to create an insurable interest, the insured must be in a position to be damaged by the destruction of the property. Under our statute, the wife’s property is her own absolutely, to do with it as she pleases; and, as far as the rights of the husband in it are concerned, it might as well belong to a stranger. The policy sued on in this case, a copy of which is attached to the complaint, required that the interest of the assured should be absolute. “Where the policy provides that the interest of the assured shall be truly stated, a statement that it belongs to the assured, when in fact it was partly owned by another, invalidates the policy.” Wood, Ins. § 163; Wilbur vs Insurance Co., 10 Cush. 446. The jury should have been instructed that, if they believed that a material portion of the property insured belonged to the wife in her own right, the policy was void, and*they should find for the defendant.

Incurable Interest of lmsband In wife property Thomas and Townsend, JJ., concur.