Phenix Insurance v. Fulton

The only question in this case is this : Fulton, in his application to this company for insurance upon a certain house, was asked whether there was any incumbrance upon it or not. He answered that there was not, when in fact there was an incumbrance of $500 upon it and the land on which it was situated. The court left it to the jury to say whether this misstatement by Fulton was a material misstatement in this case. The jury found that it was not, and found in favor of Fulton.

The insurance applied for was $1,000. The house was shown to have been worth from $1,200 to $1,500; the land, according to the testimony, was worth from $6,500 to $10,000. The incumbrance amounted only to $500.

According to our code, the misstatement must be material in order to void the policy. The question of whether it is material or not, is a question for the jury, and in this case was properly left to the jury. There is no complaint that the question was not fairly submitted to them. We think there was sufficient evidence to authorize their find, *227ing. They might very well have considered that, where-there was only an incumbrance of $500 upon premises of the .value testified to, the failure to state it in the application was not such a material misstatement as would void-the policy. The jury having so found, we affirm the judgment of the court below in refusing the grant of a new trial.

Judgment affirmed.