Margaret Wells, Respondent, v. Glens Falls Insurance Company, Appellant

Margaret Wells, Respondent, v. Glens Falls Insurance Company, Appellant. Third Department, January 9, 1907. Insurance — action on fire insurance policy—defense of breach, of war ranty in application — erroneous exclusion of evidence showing knowledge of danger from incendiarism. When, in an application for fire insurance, the insured in answer to a -question as to whether she had any reason to fear incendiarism answered no, and the defense in an action on the policy is that that representation was untrue, it is error to refuse to admit evidence to show that the husband of the insured prior to the insurance'had told her about fires on the farm started-by,a particular person and had talked with her about fires from timé to time. While such evidence might not be conclusive it is reversible error to exclude it as it bore - directly on the issue. . ' Appeal by the defendant, the Glens Falls Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the ■ clerk of the county of St. Lawrence on the 5th day of March, 1906, upon the decision of the court rendered after a trial at the St. Lawrence Trial Term, the case having been taken from the jury by consent at the close of the evidence. Malby & Bucey \JD. B. lucey of counsel], for the appellant. Willis J. Fletcher [Bedyard P. Hale of counsel], for the respondent. [MAJORITY — Cochrane, J.:] Cochrane, J.: This is an action on a policy óf fire insurance issued by the defendant May 21, 1902> covering a-barn on plaintiff’s farm in the town of Norfolk, St. Lawrence county,■ N. T. The barn, was destroyed by fire October 20,1903. The defense.is a breach of warranty in respect to representations concerning the subject-matter of the insurance made by plaintiff in her application therefor. Plaintiff has owned the farm- since the year 18/30. Before that and before her marriage her husband resided thereon. All the time it was owned by his wife down to the time of the insurance in question he managed the farm for her as her agent. As such agent he made application for such insurance. He gave to the defendant’s agent the information on which the policy was issued. From such information the -latter wrote the answers to the questions in the blank form of the application used by the defendant. Such application when thus filled out was taken to the plaintiff by her husband, signed by her, and returned by mail to the defendant’s, agent. One of the questions contained in this application was, “ Have you any reason to fear incendiarism ? ” It was answered negatively by the plaintiff. The defendant was not permitted to show at the trial what the plaintiff’s husband said to her shortly before this insurance with' reference to fires which had been set on the farm by á particular individual who was named; - nor to show by another witness that he had talked with plaintiff about fires from time to time in the last twenty years. ' It is impossible to tell to what this excluded testimony would have led. After the court-had sustained objections to it the defendant was not required to persist in offering other testimony of the same kind. The orderly and seemly conduct of the trial required the defendant to desist once the court had clearly indicated that such testimony was inadmissible. While the excluded testimony might not have been conclusive or even important no such s assumption can be made. It should have been admitted that its importance might have received due consideration. Whether the plaintiff had reason to fear incendiarism. was a material inquiry. If she had reason for such, fear she had falsely answered an important question, had given the defendant inaccurate information, and lrer policy was unenforcible. The excluded testimony bore vitally on this issue and such exclusion constitutes -reversible error. (Donley v. Glens Falls Insurance Company, 184 N. Y. 107.) The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred ; Parker, P. J., not sitting. Judgment reversed and newxtrial granted, with costs to appellant to abide event.