Burns v. Insurance Co. of Pennsylvania

• Decision Date: 26 June 1920
• Docket Number: No. 13654.,13654.
• Citation: 224 S.W. 96
• Parties: BURNS v. INSURANCE CO. OF PENNSYLVANIA.
• Court: Missouri Court of Appeals

224 S.W. 96

BURNS v. INSURANCE CO. OF PENNSYLVANIA.

No. 13654.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Jackson County.

"Not to be officially published."

Action by Margaret S. Burns against the Insurance Company of the State of Pennsylvania. Judgment for plaintiff, and defendant appeals. Affirmed.

Barnett & Weatherby, of Kansas City, for appellant.

Smith & Creason, of Kansas City, for respondent.

BLAND, J.

This is a suit by the Mortgagee upon a fire insurance policy in the sum of $2,000. There was a fire resulting in the total loss of the property insured. A jury was waived, and the court rendered judgment for the plaintiff in the amount of the policy, with interest, and $200 penalty and attorney's fees. Defendant has appealed.

The facts show that the policy was written upon a house located in Kansas City, Mo. The lot upon which the house was located was owned by Joseph Bilello and his wife as tenants by the entireties. The policy was taken out in the name of Joseph Bilello with a mortgage clause in favor of plaintiff, who owned a deed of trust upon the property in excess of the amount of the insurance. The answer pleaded a provision of the policy which made it void if the interest of the insured be other than unconditional and sole ownership, and alleged that Joseph Bilello was not the sole owner, but that the property belonged to him and his wife, Angelina Bilello, as tenants by the entireties. The reply pleaded the following provision of the policy:

"If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than an interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto."

It further pleaded that there was nothing in the mortgage clause providing that the policy should be void as to the mortgagee if the title of the insured be other than unconditional and sole ownership and alleged that Bilello was the sole owner of the building insured.

The facts show that the title to the lot was in Joseph Bilello and his wife. However, he testified that he furnished the money for the building of the house. Whether or not this constituted sole ownership by Bilello of the property insured under the meaning of the insurance policy we need not say, for the reason that by virtue of the provision of the policy quoted the mortgage clause constituted the sole contract between plaintiff and defendant. Senor and Muntz v. Western Millers' Mut. Fire Ins. Co., 181 Mo. 104, 79 S. W. 687; Trust Co. of St. Louis County v. Phœnix Ins. Co., 201 Mo. App. 223, 210 S. W. 98; Syndicate Ins. Co. v. Bohn, 65 Fed. 165, 12 C. C. A. 531, 27 L. R. A. 614; Oakland Home Ins. Co. v. Bank of Commerce, 47 Neb. 717, 66 N. W. 646, 36 L. R. A. 673, 58 Am. St. Rep. 663. And the mortgage clause contains no provision that the policy should be void in case the interest of the insured be other than unconditional and sole ownership of the property. In addition to this, the mortgage clause provides that the insurance as to the interest of the mortgagee "shall not be invalidated by any act or neglect of mortgagor or owner of the property insured." This means any act or neglect on the part of the mortgagor either before or after the attachment of the mortgage clause. Syndicate Ins. Co. v. Bohn, supra; 2 Cooley's Briefs on the Law of Insurance, p. 1229.

However, it is insisted by the defendant that, by reason of the existence of that part of the mortgage clause quoted, together with other portions of the mortgage clause providing that the mortgagee must notify the company of any change of ownership or in, crease of hazard coming to his knowledge and have permission therefor indorsed on the policy, that suit or foreclosure proceedings by the mortgagee or his assignee shall not invalidate the insurance as to the interest of the mortgagee, and that "the foregoing provisions and agreements shall take precedence over any provision or condition conflicting therewith contained in said policy," the conditions of the policy have only been modified in the mortgage clause in the manner written in that clause; therefore we must turn to the policy proper and apply the provisions of it in so far as they are not expressly changed in the...