
    EASTERN MOTOR FREIGHT, INC et v POTOMAC INSURANCE CO
    Ohio Appeals, 9 th Dist, Summit Co
    No 2641.
    Decided March 13, 1936
    Fred G. Cain, Akron, and Musser, Kimbc-r & Huffman, Akron, for plaintiffs in error.
    Squire, Sanders & Dempsey, Cleveland, and R. H. Nesbitt, Akron, for defendant in error.
   OPINION

By STEVENS, J.

The policy of insurance upon which plaintiffs’ action is predicated, contained, among o-tliers, the following provision:

‘'4. Conditions • * *
"b. Misrepresentation and Fraud. This entire policy shall be void if the assured or his agent has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insuranca or the subject thereof, or if the assured or his- agent shall make any attempt to defraud this company either before or after the loss.”

The “Inland Marine Endorsement” attached to said policy contained the following:

“It is understood and agreed that this policy, subject to all its terms and conditions, covers the interests of Sears, Roebuck & Company * *

The record, together with the statements of counsel made in open court, clearly discloses an attempt on the part of the agent of Eastern Motor Freight to perpetrate a fraud upon defendant insurance company, and therefore, under the express pro-vise ,n of the contract itself, the policy was void as to Eastern Motor Freight, Inc.

Under the Inland Marine Endorsement, the rights of Sears, Roebuck & Co. were subject to all the terms and conditions of the policy, and accordingly the rights of Sears, Roebuck & Co. could rise no higher than those of Eastern Motor Freight, Inc.

It is the conclusion of this court that, by reason of the attempt on the part of plaintiffs’ agents to defraud the defendant company, the policy in question was void as to both Eastern Motor Freight, Inc., and Sears, Roebuck & Co.

The trial court therefore did not err in directing a verdict for defendant at the conclusion of plaintiffs’ case in chief. Judgment affirmed.

FUNK, PJ, and WASHBURN, J, concur in judgment.  