Opinion
No. 9937.
April 30, 1945.
Appeal from the District Court of the United States for the Northern District of Ohio; Emerich B. Freed, Judge.
Action by Martin Leithauser, administrator of the estate of P.J. Leithauser, deceased, against Hartford Fire Insurance Company on a fire insurance policy. Judgment for defendant, and plaintiff appeals.
Affirmed.
C.W. Palmer, of Defiance, Ohio, Eugene Rheinfrank and Frazier Reams, both of Toledo, Ohio, for appellant.
Fraser, Shumaker, Kendrick Winn, of Toledo, Ohio, and Myers Snerly, of Chicago, Ill., for appellee.
Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.
This case came on to be heard upon the record, briefs and oral argument of counsel.
And it appearing that without the knowledge of the insurer and in violation of the terms of the policy, a chattel mortgage existed upon the insured property at the time the policy was issued and at the time of the fire;
And it appearing that Section 9583, General Code of Ohio, does not preclude the assertion by the appellee of the defense that a chattel mortgage was outstanding on the insured structure, Sun Fire Office of London v. Clark, 53 Ohio St. 414, 42 N.E. 248, 38 L.R.A. 562; Webster v. Dwelling House Ins. Co., 53 Ohio St. 558, 42 N.E. 546, 30 L.R.A. 719, 53 Am.St.Rep. 658; Germania Fire Ins. Co. v. Werner, 76 Ohio St. 543, 81 N.E. 980, 12 L.R.A., N.S., 456, 118 Am.St. Rep. 891.
It is ordered that the judgment be, and it hereby is, affirmed.