Opinion
March 3, 1920.
D.H. Demarest, for the appellant.
Ainsworth, Carlisle Sullivan [ Charles B. Sullivan of counsel], for the respondent.
This action was brought to recover upon three policies of insurance written upon the hotel property of the plaintiff. The court directed a verdict as to two of the policies, and submitted to the jury the evidence in support of the defense that the third policy was issued in reliance upon the false and fraudulent statements of the plaintiff. The jury found in favor of the defendant insurance company and the plaintiff appeals from the judgment in this regard and from an order denying his motion for a new trial.
The plaintiff urges that the court erred in permitting the defendant, on cross-examination, to ask the plaintiff if he had had any fires previous to his making the application for the policy in question on the third of August, a few days before the fire which destroyed the property. The issue involved was whether the plaintiff had induced one Boyd, the defendant's agent, to write the policy in question under false statements, one of which related to previous fires, and we can conceive of no ground for objection to this line of questions on cross-examination of the plaintiff. The authorities cited on this point by the plaintiff certainly have no tendency to establish error, and we think the point is without merit.
Next we are asked to hold that it was error for the court to permit the defendant to show that the defendant's home office did not have notice of the issuing of this policy prior to the fire. If the purpose of this testimony was to defend against the policy itself it would undoubtedly be open to criticism, but no such issue is involved here. There is no question that if the policy was free from fraud in its inception the defendant is liable. The question is whether the plaintiff procured the policy by fraudulent misrepresentations, and the purpose of the testimony brought out was to show that the defendant, which had issued two previous policies upon the same property through another agent, had not waived the fraud. We think the court did not err.
We have examined the case and find no error of which the plaintiff may fairly complain.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.