
    (Sixth Circuit — Huron Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Haynes, Scribner and Bentley, JJ.
    LOUIS PHILLIPS, v. THE OHIO FARMER'S INSURANCE COMPANY.
    
      Insurance policy — Statements in application correctly stated by applicant., but erroneously written dawn by agent himself— Question for jury—
    Where in a suit on a fire insurance policy the defensa is set up that the facts stated in the application as to encumbrances were not correctly stated, and the plaintiff denies fraud and claims that the facts were correctly stated and well known to the agent who wrote them in rhe application himself, this would entitle him to a recovery, and the question whether this was so should be submitted to the jury.
    
      Policy on building and personal property,-when severable—
    A policy insuring the buildings ápd the personal property in two distinct items and amounts, is severable, and if the insurance fails as to one, may be good as to the other.
    
      Cross-examination of witness — Limits—Rule in Ohio—
    The law in Ohio in regard to cross-examination of witnesses is somewhat different in different parts of the state. The practice in a large portion of the state is to require counsel upon cross-examination, to limit himself entirely to the cross-examination of such matters as have been referred to by plaintiff m his examination in chief; but the rule in the sixth district has been, to allow the defendant to cross-examine the plaintiff’s witnesses upon anj matters at issue upon which the plaintiff himself might produce testimony, — with this limitation or qualification, that the defendant shall not be permitted'to go into matters of defense in his cross-examination of plaintiff’s witnesses. And that is the rule laid down also by the Supreme Court.
    
      Cross-examination on new mattez'not in issue — ■
    An insurance company can not cross-examine plaintiff’s witnesses as to matter not opened in examination in chief, nor which would constitute a defense to an action on the policy, but is not set up in its answer, and therefore not in issue.
   Haynes, J.

This’case is prcsecuted for fhe purpose of reversing the judgment of the court of common pleas. The action was brought by Louis Phillips in the court of common pleas against the Ohio Farmers’ Insurance Company upon a certain policy of insurance, and such proceedings were had in that court that a verdict was rendered against the plaintiff, ándito reverse that judgment and set aside that verdict, this proceeding in error is prosecuted. Since the case was tried at least one very important decision has been rendered by the Supreme Court of this state upon questions that are at issue in this 'case. The case will have to be reversed and sent back for a new trial.

The requests to charge are quite numerous, and upon request of the parties were given before argument, and after argument the general charge of the court to the jury was given.

I will not take the time to go through with the various requests for charge, but will state generally our views with regard to the law of this case, and I think by so doing, upon another trial, the whole question of charge and request for charge will be changed, and shape itself more in accordance with the decisions of the Supreme Court.

The plaintiff avers in his petition that he had insured with the defendant company, buildings upon a certain farm which he then owned in this county, and upon certain personal properij' situated upon this place, — a policy of insurance upon dwelling-house No. 1, and cellár, $500; upon household furniture, clothing and provisions, while therein, $200; barn No! 1, and shed, $800; hay,grain,fodder and seed while therein, $300; live stock while therein, and against lightning on the farm, $200; farm implements, wagons, carriages and harness while in barn or barns insured therein, $200.

Plaintiff set up the fact that he had made proofs of loss and presented them, but that the party defendant had refused to pay, and that thereupon he had brought his suit.

The defense has first, admissions as tc certain matters and a general denial as to the residue. There are some four or five special defenses. The first refers to the declarations that were required to be made by the applicant in his written application for insurance upon his property.

The particular part that is complained of relates to the questions that were put to him, as is stated, as to whether there were mortgages upon the property, and it was replied that there was a mortgage of $2,000, and in regard to the value of the property, that the property was worth $7,500. It is averred that there was, in fact, at that time, a mortgage cf $4,000 upon the property, and that the value of his property was not nearly so much as was stated. But, it is claimed by the terms of the application and policy, that that was a warranty, and its -truthfulness is a condition precedent to the right of the plaintiff to recover. The other defenses relate to matters that arose subsequent to the insurance. One of the defenses is that there had been a transfer of the title, and as it was claimed, che land had been conveyed to Margaret .Phillips, who, as it appears, was the wife' of the plaintiff.

Another defense was, that the property had been allowed to remain vacant and unoccupied, cr that it was occupied by tenants, and that by virtue of a provision of certain clauses of the policy, that avoided the policy. Another defense was that there had been a suit commenced to foreclose certain mortgages upon the pruperty which was then pending ahd for judgment at the time of the fire; and that the property was being offered for sale by the sheriff of the county, and it is claimed that this is a violation of certain clauses in the policy.

Charges were requested to the court upon these various points upon both sides, and general propositions were given to the jury.

• It will be seen that these defenses may be divided inte two classes, one as to matters that occurred prior to the issuing of the policy, and the others that occurred subsequent to the issuing of the policy.

There was also a question raised during the trial in regard to the right of the plaintiff to recover in this case for the personal property that was insured, even though the jury might find against the plaintiff upon the real property upon the buildings.

It is perhaps proper to say that the house and barns were both totally destroyed, and with them, as it is claimed, a large amount of personal property which was covered by this policy of insurance.

In reply to these various defenses,- it was set up in the reply that was filed in the case, that the application w'as taken by an agent of the company who wrote out all of the various answers that appear in the application. It was set up further that there had been insurance upon this property by the defendant company for a period of many years,— twenty years, perhaps, — and that the policy had been renewed from time to time, and that this was simply a renewal of the former policy, although in fdrm,. it was a new policy taken upon a new application. It is claimed also by the plaintiff below, and testimony .was offered to prove, that the plaintiff, in all the statements that he made to the agent, told' the truth as it existed, and if any errors occurred in the written answers, it was the error of the agent and not the error of the plaintiff herein. It was not denied, however, as we understand, by the answers, that there was in fact, a mortgage upon the property of more than $2,000.

In regard to the condition precedent, there are two questions arising in the case; one was. how far it would avoid the policy on the specific property itself; the second was, how far it would avoid the whole policy.

It was claimed on the part of the plaintiff that he might recover for the personal property, although, as a matter of fact, he might not recover for the real property.

We think that question has been largely settled in this state,by the case of Coleman & Co. v. The Insurance Co., in the 49 Ohio St., and in the cases that are therein cited. I read from page 810in that case:

“A policy of fire insurance issued by the defendant which, for a premium in gross, insured the plaintiffs to the amount of $200 on their storehouse, and $8800 on their stock of goods, therein, contained a condition-that, ‘if the building intended to be insured stands on ground not owned in fee simple by the assured, the policy shall be void, unless consent in writing by the company be endorsed thereon.’ Within the period covered by the policy, the house and goods were destroyed by fire; and, it appeared that the plaintiffs did not own,in fee simple, the ground on which the building stood. In an action on the policy: ‘Held, that the contract is severable; and that the breach of the condition as to tüe title to the land, does not defeat the plaintiff’s right to recover for the loss of the stock of goods insured by the policy.”

The case is quite lengthy, and a large number of cases are cited by the judge of the Supreme Court who delivered the opiniou in the case. I can only recommend to counsel in this case to read that decision, to shape carefully in the future with reference to it, the charges he desires to be given to the jury.

Whether this policy would be defeated by a violation of this warranty will depend upon several things. As I have said, it is claimed by the plaintiff here that the answers were written by the agent of the company; it is claimed that he told the truth to tfie company in regard to the condition of the property, and that they had full knowledge in regard to the liens on the same. That question is a question that should be submitted to the jury for proper consideration, under the decision of the case I have cited, and other decisions that have been made by the Supreme Court. If the assertion was made knowingly and wilfully, and was knowingly and wilfully ialse, we suppose there is no question but that the plaintiff would be barred from recovery, so far as the buildings themselves were concerned; but it should be submitted to the jury whether or not these representations were trhe; that these answers were written by the agent of the company,and whether the plaintiff had correctly informed him, and be had full knowledge at the time in regard to these mortgages, and whether there had been any intentional fraud on the part of the plaintiff.

It will be observed in this case of Coleman v. The Insurance Company, that there are many cases cited that come almost substantially within the same facts that are set forth, or proven in this case.

In regard to the conditions that have arisen since the making of the policy which should avoid the same, a decision was rendered by the Supreme Court of this state last month which has a direct bearing upon the matters in issue. It was the case of Myron C. Moody v. The Amazon Insurance Company, and was error to the circuit court of Ashtabula county. We only have the syllabus (for full report see 32 W. L. Bulletin, 402; 52 Ohio St., 52). In the second syllabus the following statement was made on conditions precedent:

“The conditions precedent, performance of which the plaintiff is required to plead in an action on such a policy, include only those affirmative acts which are necessary an order to perfect his right of action on the policy, such as giving notice and making proof of the loss, furnishing the certificate of the magistrate when required by the policy, and, it may be, other acts of like naturb. ”

(I call attention to this in reference to the same question that arose in evidence, which I shall speak of later on.)

“Conditions which provide that the policy shall become void or inoperative, or the insurer relieved wholly or partially from liability, upon the happening of some event, or doing, or omission to do some act, are matters of defense, and to be available must be pleaded, and their breach alleged.”
“8. When the action is upon such a policy issued since the passage of the act of March 5, 1879, tc regulate contracts of insurance of buildings and structures (Rev. Stats., Secs. 3643, 3644,) and there has been no intentional fraud on the part of the insured, an answer which alleges the breach of a condition that the insurer shall not be liable for loss or damages in or on vacant or unoccupied buildings unless consent for such vacancy or non-occupancy be indorsed on the policy, is insufficient, unless it is also averred that the risk was thereby increased; and if the allegations of the answer be put in issue, whether the building insured became vacant, or unoccupied, or the risk was increased, are questions for the jury, upon both cf which the defendant has the burden of proof. ”

The case of the Insurance Company against Leslie, in the 47 Ohio St., page 409, has a uearirig upon this question, as affected by the statutes of the state of Ohio, and of course, by the decisions of the Supreme Court of this state. I will read from the syllabus:

“The act of March 5, 1879, ‘to regulate contracts of insurance of buildings and structures’ (now Secs. 8643 and 3644 of the Rev. Stats,) applies tc all policies issued since it went into effect, insuring any building or structure in this state against loss or damage by fire. The neglect or omission of the company’s agent to make the examination of the property and fix its insurable value, as the statute requires, cannot prevent its application to a policy issued by the company, or defeat or affect the operation of the statute.”
“2d. The statute is founded upon considerations of public policy; its purpose being to exact diligence and care on the part of insurance companies, to avoid improper risks and over-insurance by requiring them to cause their agents to make personal examination of the property, a full description thereof, and fix its insurable value, as well as to protect the insured against unreasonable forfeitures and defenses. The more effectually to accomplish these results, the statute holds the company liable on its policy, unless after its issue, a change occurs increasing the risk without its consent, or the insured has been guilty of intentional fraud, and in case of the total loss of the property by fire, the measure of the liability is fixed at the amount mentioned in the policy, upon which the insurer received a premium. The statute cannot be regarded as conferring upon the assured a mere personal privilege which may be waived by agreement. It molds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability.”

We had occasion to examine this question in a case that arose in Williams county at the June term, 1891, — the ease of The People’s Mutual Fire Insurance Company, against Clarence Bowersox, receiver. In that case there was a clause in the policy by which the company would not be liable by virtue of any policy issued by it for incumbrance procured or-suffered to accrue covering property e therein specified,- or-¡any part thereof. There had been a judgment rendered-in that case upon two.notes with cognovit in the usual-form, in an action below, and it was claimed that the placing of these liens, or permitting them to be placed upon the property by giving this cognovit, avoided the policy. - We'followed the same doctrine that is laid down in the' 47-Ohio St., and held that it did not avoid the policy, unless.it was ¡shown-that the risk was increased, and the burden-was upon the defendant to prove that. Those rules, we suppose, apply to all the matters set up subsequent to the issuing of the policy. (See 5 C. C. Rep., p. 444.)

In regard to the bringing of the suit, that was brought in the name of Louis Phillips. It is shewn in evidence -that subsequent to the making of the policy, the -property'had been conveyed to Margaret Phillips. That is not denied in the reply. Evidence was offered to show that the-conveyance was made in trust for-the plaintiff, Louis Phillips. It was claimed in testimony that Louis Phillips had'become perhaps weak in mind,or his faculties a little impaired, and for the purpose of protecting the property, under the advice of counsel, the legal title of the property was placed in the name of Mrs. Pihllips, and m trust for Louis Phillips, who was, -in fact, the real owner of the property.

That particular fact was not set up in the reply. We think, of course, it ought to have been, because it is a very material and important matter; but we think, from that state of facts, that the plaintiff could have the right to commence an action, if he chose, in his on name. It is true that under Sec. 4995, an executor, administrator or guardian, a trustee of an express trust, may bring an action in his on name without joining with the other party.

There are a large number of requests that were made by counsel to be given to the jury before argument, both'on' behalf of the plaintiff, and on behalf of the defendant.

The statute permits propositions of that kind to be submitted to the court, and the court should be required to either give them or refuse to give them. The difficulty with many of these propositions is tnat they are very general,and it is a 'dangerous to give abstract propositions of law tb a jury. A request should be so molded as to fit the facts of -the case as they are claimed, at least, by the respective parties, and the court should be asked then to charge that if the jury find the facts to be so and so, then the law would be so and so. That is to say that, finding the facts to be so and so by the jury, the law should be stated with that distinctness and care which is to guide the jury in coming to a conclusion in regard to respective rights and liabilities of the parties under the laws of the land.

The court, if I understand the record correctly, refused to give the proposition in substance — that even if the plaintiff could not recover for the value of the buildings, that he might recover, under proper circumstances, for the personal property. That is to say, as we understand it, the court construed the contract to be one and indivisible, inasmuch as the clause, of the policy provided that in case there should be any change in the title or any part thereof, or that the same should be encumbered by mortgage or otherwise, without the written consent of the party, then the policy shall be void. I have pointed out that the Supreme Court of this state have taken a different view in regard to that class of policies, and that the charge of the court in that respect should be so modified as to meet the views of the Supreme Court of the state.

As to conditions subsequent, the Coleman case I think settled that question. The views of the Supreme Court of this state are, that the rule is the same with regard to conditions that are subsequent as-it is with regard to conditions that are precedent. They follow the same general rule. My own conclusion is, from the decisions, that conditions subsequent follow the same as conditions precedent.

There is another matter that is referred to here in the record, and that is the examination of the witness, Margaret Phillips. She was called and examined by the plaintiff in regard to the occupancy of the buildings and in regard to the contents of the buildings at the time of the fire, and some other matters; and then,upon cross-examination,counsel for the defense propounded this class of questions. On cross-examination, questions were asked and answers were given for the purpose of showing the character of the witness and her interest in the case, and tending to show first, that the witness was at and before the time of the fire, the real owner of the property burned, she having received the deed of the same from Phillips; that the witness had known before the file that the property had been mortgaged for about $4,000; that she had known before the fire that a mortgage had been foreclosed and the property was being advertised for sale by the sheriff, the same week, or a few days after the fire; that witness was desirous of bidding the property-in, and to that end was seeking to raise money; and further, for the purpose of tending to show that the fire in question was of incendiary origin and that she either burned the buildinsg or property insured, or procured the same to be burned.

For the purposes aforesaid, the following questions were asked and allowed by the court:

“Had not Arthur, the mortgagee, brought suit to foreclose the mortgage, and was it not advertised for sale under that proceeding at the time of the fire: Was not the farm deeded to you by your husband after the policy was issued?”

In regard to the first question, that perhaps, is proper, because the allegation of the plaintiff was, that he was the owner of the property at the time it was insured, and he left that matter standing as a fact that he was the owner at the time the fire occurred. That was put in issue by the answer.

It might be competent, under- that state of pleadings, for the defendant to show that he was the owner at the time the fire occurred. The other questions refer entirely to matter that arose upon the defense set up by the company.

Save and except, I think, the question in regard to the incendiary origin of the fire,' — that she either burned the buildings, and property insured, or procured the same to be burned,' — there was no allegation in the answer in any form that the buildings were burned by the plaintiff, or indeed, that the fire was of incendiary origin.

The question as to whether this fire was of incendiary origin was a question entirely foreign to this issue, unless it was connected directly with parties to this suit, because the policy of insurance covers incendiary fires as well as accidental fires, provided the fires are not set by the party himself. Then they proposed to show that she either burned the buildings and property, or procured the same to be burned. The law in Ohio in regard to cross-examination of witnesses is somewhat different in difieren* parts of the state. I had occasion, I remember,several years ago, in connection with the court I was then sitting with, to examine that question. It is said to be the practice in a large portion of the state, to require counsel upon cross-examination, to limit himself entirely to the cross-examination of such matters as have been referred to by plaintiff in his examination in chief; but I think the rule in this district has been, to allow the defendant to cross-examine the plaintiff’s witnesses upon any matters at issue upon which the plaintiff himself might produce testimony, — with this limitation or qualification, that the defendant shall not be permitted-to go into matters of defense in his cross-examination of plaintiff’s witnesses.

There are many reasons in support of that rule, and that is the rule that has been laid down also by the Supreme Court of this state. It is true that in cross examination of a witness, at times, the witness is allowed to be asked about collateral matters for the purpose of testing his memory and sime matters of that kind. It has been allowed to ask the witness if he has not been convicted of crime sometime for the purpose of affecting his credibility. But I suppose when a party goes into anything merely collateral for the purpose of testing the witness’s memory, the court should guard jealously and carefully that the party shall not be allowed to treat the answers as proof óf independent evidence before the jury. In a case of this kind it was very easy to raise the issue where a party could, offer testimony himself in regard to the origin of that fire.-

If the company believed that that fire was of an incendiary origin by the act or procurement of the plaintiff or of this witness, that .matter could be averred and set up in their answer, and testimony could be offered upon it. How far the witness might be examined upon that as to testimony in chief, is perhaps doubtful; however, she offered herself as a witness upon that issue,and she probably would open herself to a full cross-examination in regard to the whole matter; but we think that the court ought not to permit counsel to go into matters of this kind without any issue, for the purpose of getting independen t{testimony before the jury — or in attempting to — that would tend to show or throw suspicion upon the plaintiff, or a suggestion that she herself had been the cause of the fire; nor should he be permitted to go into those matters which are purely matters of defense.

The burden of proof rests upon the company, by the decision of the Supreme Court, and it should have waited until such time as it had an opportunity to put its witnesses on the stand; then it could have opened up its case, and probably that would have brought all these matters before the jury, and would have given counsel ample opportunity to examine his witnesses.

We note that although the testimony was allowed to go to the jury, nothing was said by the court to the jury in regard to any limitation upon the testimony.

For the reasons I have stated, the judgment of the court of common pleas will be reversed, the verdict set aside, and the cause remanded tc the court of common pleas for a new trial.  