Coates v. Pennsylvania Fire Ins. Co. of Philadelphia

• Decision Date: 22 March 1882
• Citation: 58 Md. 172
• Parties: GEORGE W. P. COATES and CHARLES E. COATES, trading as COATES & BROTHER v. THE PENNSYLVANIA FIRE INSURANCE COMPANY OF PHILADELPHIA.
• Court: Maryland Court of Appeals

58 Md. 172

GEORGE W. P. COATES and CHARLES E. COATES, trading as COATES & BROTHER v. THE PENNSYLVANIA FIRE INSURANCE COMPANY OF PHILADELPHIA.

Court of Appeals of Maryland

March 22, 1882

APPEAL from the Court of Common Pleas.

This is an action on a policy of fire insurance, brought by the appellants against the appellee. The case is stated in the opinion of the Court.

The cause was argued before BARTOL, C.J., MILLER, ALVEY ROBINSON, IRVING and RITCHIE, J.

John S. Tyson, and Henry V. D. Johns, for the appellants.

By electing to plead, and not to demur, the defendant admitted the legal sufficiency of the declaration. All that is necessary to maintain an action at law, is to prove the averments of the narr. If they were insufficient the defendant should have demurred. Hall, Executor vs Bryan, Trustee, 50 Md., 210.

When evidence is offered generally, the question of its admissibility, should be determined by the averments in the pleadings. B. & O. R. R. Co. vs. State, use of Woodward, 41 Md., 297.

The excluded evidence tended to prove the averments in the narr., and should have been admitted--and this is decisive of this appeal.

The form of the action is proper. In the fourth volume of Wait's Actions and Defences, page 84, the law is stated as follows:

1st. If the policy is payable in case of loss, to a third person, he may sue in his own name.

2nd. But the insured may sue in his own name with the consent of the person to whom the policy is payable.

Cases are cited sustaining both of these propositions--and none to the contrary of either.

The Supreme Court of Maine, in the case of Motley vs. Manufacturiny Insurance Company, 29 Maine, 337, announces the first of these propositions as law. And the Court of Appeals of Maryland in Nat. F. I. Co. vs. Crane, 16 Md., 292, and in Hough, &c. vs. Peoples Fire Ins. Co., 36 Md., 431 concur.

The Supreme Court of Maine, in the case of Patterson vs. Triumph Insurance Company, 64 Maine, 500, decided in 1876, Chief Justice WALTON, with five associate Judges concurring, announce the second proposition to be equally correct law, and use the following language: "It is objected that the action cannot be maintained in the names of these plaintiffs, because the loss if any, was made payable to a third party. No authority is cited in support of this proposition, and the contrary seems to be well settled." Judge WALTON refers to 18 Pick., 53, in which case Judge PUTMAN, with whom Chief Justice SHAW, and Judges WILDE and MORTON concur, says, on page 56, "this matter seems however, too clear to require the citation of authorities to support it." 1 Saunders on Pl. and Ev., marginal, 142, and cases cited; Martin vs. Franklin Insurance Company, 38 N. J., 140; Jackson vs. Farmers' Mutual Insurance Company, 5 Gray, 57, (1855)--Judge METCALF below, Chief Justice SHAW above. Turner vs. Quincy Insurance Company, 109 Mass., 573, (1872;) Hall vs. Dorchester Insurance Company, 111 Mass., 55, (1875.) To the reasoning of Judge WOODRUFF, in the case of Grosvenor vs. The Atlantic Fire Insurance Company, 5 Duer, 522, &c., and 528.

The right of the assignee of a chose in action to sue in his own name, under sec. 41, of Art. 64 of the Revised Code of Maryland, is merely cumulative. See Canfield, &c. vs. McIlwaine, et al., 32 Md., 100; Hampson vs. Owens, 55 Md., 583.

To relieve the defendant from liability, in case the assignee of a chose in action sues in common law form, and doubts are entertained that the suit is with the consent of the assignee, the defendant may file a bill of inter-pleader. See 60 N. Y., 624. It was to render such solicitude upon the part of the defendant, legally impossible, that the declaration contained the averment of consent, and that the excluded evidence was furnished by the plaintiffs, constituting, as that instrument over the corporate seal and official signature of the corporate assignee, did, an effectual estoppel in pais as to a demand for payment from it in any other form.

But independently of any of the considerations hereinbefore urged, these plaintiffs are entitled to bring this suit in their own names, under the theory that they may be regarded as assignees in writing of a chose in action under the legal operation of the paper offered in evidence, executed by the Savings Bank of Baltimore. 1 Parsons on Contracts, 192; Bouvier's Law Dic., 14 Ed., """ Chose in Action," sec. 5; 19 Wend., N. Y., page 73--in which case Judge COWAN holds, that such an instrument operates in the case of an ordinary chose in action, as an assignment.

The assignee of an assignee of a chose in action, has a right, under the provision of the Code, to sue in his own name. Poe on Pleading and Practice, 239.

John Carson, for the appellee.

The insertion in the policy of the words, loss, "if any, payable to the Savings Bank of Baltimore, mortgagee," is an assignment to the Bank of the policy at its inception, with the consent of the company. National Fire Insurance Company vs. Crane, 16 Md., 293; Hough, &c. vs. President, &c., People's Insurance Company, 36 Md., 399; Brown vs. R. W. Insurance Company, 5 R. I., (2 Ames,) 394; Woods on Insurance, sec. 104, page 230, sec. 347, page 583; Flanders on Fire Insurance, 441; Bidwell, et al. vs. St. Louis F. D. & Ins. Co., 40 Mo., 42; Franklin vs. National Insurance Company, 43 Mo., 491.

Such an assignee may recover the whole loss, and is trustee as to any surplus for the assignor. Hough, et al. vs. President, &c., People's Insurance Company, 36 Md., 399; Cone vs. Insurance Company, 60 N. Y., 625.

The mortgagee has his right of suit, whether his debt be paid or not, as that question only affects his account with the mortgagor. Brown vs. R. W. Insurance Company, 5 R. I., (2 Ames,) 394.

The right of suit is in the assignee alone. Cone vs. Insurance Company, 60 N. Y., 625; Charter Oak L. I. Co. vs. Smith, 43 Wis., 329.

After such an assignment, Coates & Bro. could not adjust the loss, or submit that question to arbitration; that right belonged exclusively to the bank. Brown vs. R W. Insurance Company, 5 R. I., (2 Ames,) 394; Harrington vs. Fitchburg Marine Insurance Company, 124 Mass., 126.

After such an assignment, the bank would be charged with the duty of collecting the insurance money, the same as any other collateral held by it, and on its failure or neglect to do so, it would be chargeable therewith, and be liable for any loss. Charter Oak L. I. Co. vs. Smith, 43 Wis., 329.

The whole legal and beneficial interest under the policy being in the bank by the original assignment, the bank could sue upon the policy under our assignment law, either in its own name, or in the name of Coates & Bro. for its use. Either would have been the bank's suit. But the present suit is that of Coates & Bro., brought in their name, and for their use alone, upon the consent of the bank stated in evidence, and such consent alone could confer no right of action; there must be a re-assignment of the policy to give that right of action.

In bringing this suit, it is evident that the plaintiffs' counsel relied on certain Massachusetts cases. Jackson vs. Farmers' M. T. I. Co., 5 Gray, 52; Turner vs. Quincy Insurance Company, 109 Mass., 573; Farrow vs. C. I. Co., 18 Pick., 53.

These cases would seem to give countenance to the doctrine that Coates & Bro. could sue upon the consent offered by them in evidence.

Admitting the Massachusetts doctrine to the fullest extent that can be claimed for it, it is not law in Maryland, and has no application to a case arising in Maryland. Massachusetts has no assignment law, such as we have in Art. 9, Code of Pub. Gen. Laws. In Massachusetts an assignment is only regarded as creating an equitable right, to be enforced in the name of the assignor. Gibson vs. Cooke, 20 Pick., 15; Palmer vs. Merrill, 6 Cush., 287; Angell vs. Stone, 110 Mass., 54; Foss vs. Lowell Fifth Bank, 111 Mass., 287; Stearns vs. Quincy Insurance Company, 124 Mass., 61; Walker vs. Brooks, 125 Mass., 247.

The only case in Massachusetts in which the assignee can sue in his own name is where the Court can, from the assignment and the attendant circumstances, make out a new contract between the insurance company and the assignee; and then he sues not by force of the assignment, but of the new contract. Tripp vs. Pacific Insurance Company, 7 Allen, 230; Donahue vs. Boston, 126 Mass., 308.

This is an exception in insurance law, not recognized out of Massachusetts, and not in harmony with Maryland law, which holds that the title of the assignee is no better or stronger than that of the assignor. The Citizens F. I., S. & L. Co. vs. Doll, 35 Md., 89.

In Massachusetts in this case the bank would have had no legal rights under the assignment; its rights would have been purely equitable; it could not have sued in its own name, and Coates & Bro. alone could have sued.

They could have sued without the bank's consent, and the only effect of that consent was to entitle the assignor to costs against the company. Jackson vs. F. Mutual Ins. Co., 5 Gray, 52.

As the assignment passes no right of suit to the assignee, the consent of the latter becomes immaterial. This whole question is settled in Maryland by Hough, et al. vs. Peoples' Fire Ins. Co., 36 Md., 399, which holds that the assignee may sue for the whole--and as to any surplus, is trustee for the assignor.

RITCHIE J., delivered the opinion of the Court.

The single question to be determined on this appeal is whether the plaintiffs, to whom the policy...