Leithauser v. Hartford Fire Ins. Co., 149 F.2d 152 (6th Cir. 1945)

No. 9937.

April 30, 1945.

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, 111., for appellee.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

PER CURIAM.

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.