Dodge v. The Hamburg-Bremen Fire Insurance Company

• Decision Date: 01 June 1896
• Docket Number: 114
• Citation: 46 P. 25,4 Kan.App. 415
• Parties: JOHN L. DODGE v. THE HAMBURG-BREMEN FIRE INSURANCE COMPANY
• Court: Kansas Court of Appeals

46 P. 25

4 Kan.App. 415

JOHN L. DODGE v. THE HAMBURG-BREMEN FIRE INSURANCE COMPANY

No. 114

Court of Appeals of Kansas, Southern Department, Eastern Division

June 1, 1896

Opinion Filed September 5, 1896.

MEMORANDUM.--Error from Sedgwick district court; C. REED judge. Action by John L. Dodge against The Hamburg-Bremen Fire Insurance Company to recover on a policy of fire insurance. Judgment for defendant. Plaintiff brings the case to this court. Reversed. The opinion herein, filed September 5, 1896, states the material facts.

Judgment reversed and cause remanded.

Bentley & Hatfield, for plaintiff in error; Holmes &amp Haymaker, of counsel.

Bentley & Ferguson, for defendant in error.

DENNISON J. All the Judges concurring.

OPINION

DENNISON, J.:

Mrs. Flora Cowley was the owner of a lot upon which was situated a house and barn, upon which she procured a loan from the Sedgwick Loan and Investment Company, and she and her husband executed to said company a mortgage thereon. She also procured a policy of insurance upon said house and barn from the agents of this defendant in error in Wichita, Kan., which had attached to it the following subrogation contract:

"Policy No. 963, in name of Flora Cowley. Agency at Wichita, Kan.

"Loss, if any, payable to Sedgwick Loan and Investment Company, mortgagee or trustee, or its assigns, as its interest may appear as herein provided.

"It being hereby understood and agreed, that this insurance, as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by the terms of this policy: Provided, That the mortgagee or trustee or assigns shall notify this company of any change of ownership or increase of hazard which shall come to his or their knowledge, and shall have permission for such change of ownership or increase of hazard duly indorsed on this policy: And provided further, That every increase of hazard not permitted by the policy to the mortgagor or owner shall be paid for by the mortgagee or trustee or assigns on reasonable demand, and after demand made by this company upon, and refused by the mortgagor or owner to pay, according to the established schedule of rates. It is, however, understood that this company reserves the right to cancel this policy as stipulated in the printed conditions in said policy; and also to cancel this agreement on giving 10 days' notice of their intentions to the trustee or assigns or mortgagee named therein, and from and after the expiration of the said 10 days this agreement shall be null and void. It is further agreed, that in case of ally other insurance upon the property hereby insured, then this company shall not be liable under this policy for a greater proportion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property issued to or held by any party or parties having an insurable interest therein. It is also agreed, that whenever this company shall pay the mortgagee or trustee or assigns any sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor exists, it shall at once, and to the extent of such payment, be legally subrogated to all the rights of the party to whom such payments shall be made, under any and all securities held by such party for the payment of said debt. But such subrogation shall be in subordination to the claim of said party for the balance of the debt so secured; or said company may, at its option, pay the mortgagee or trustee or assigns the whole debt so secured, with all the interest which may have accrued thereon to the date of such payment, and shall thereupon receive from the party to whom such payment shall be made an assignment and transfer of said debt, with all securities held by said parties for the payment thereof. The foregoing provisions and agreements shall take precedence over any provision or condition conflicting therewith, contained in said policy. This clause is attached to and is made a part of the said policy from the 9th day of January, 1890. In witness whereof, the duly authorized agent of said insurance company has hereunto set his hand on said day.

CALDWELL & FELLOWS,

Agents Hamburg-Bremen Insurance Company, of Germany."

Dodge commenced this action to recover upon said insurance policy. The answer was a general denial. The case was tried by the judge without a jury, upon the following agreed statement of facts:

"It is hereby stipulated and agreed between the parties to this action, that the above-entitled cause may be tried in the court without a jury, and that the court may render judgment upon the pleadings filed herein, and the following facts which are hereby agreed to:

"That the defendant, Hamburg-Bremen Fire Insurance Company, is a corporation organized under the laws of Germany and duly authorized to and is transacting business in the state of Kansas as an insurance company; that on the 9th day of January, 1890, the defendant herein, for a valuable consideration paid to it by Mrs. Flora Cowley, issued to her its certain fire-insurance policy (said original policy is attached to the plaintiff's petition herein); that at the time said policy was issued Mrs. Flora Cowley was the owner of the fee title of the property described in said policy that on the 1st day of April, 1889, the said Flora Cowley with her husband, Hale Cowley, executed a mortgage on the premises described in said policy to the Sedgwick Loan and Investment Company; that on or about the 9th day of January, 1890, the date on which the policy of insurance was delivered to the said Mrs. Flora Cowley, she delivered the same with the mortgage clause attached to said policy to the Sedgwick Loan and Investment Company; that subsequent to the delivery of said policy of insurance by Mrs. Flora Cowley to the Sedgwick Loan and Investment Company the said the Sedgwick Loan and Investment Company assigned, indorsed and delivered said mortgage hereinbefore mentioned, together with this policy of insurance, to John L. Dodge, plaintiff herein; that on the 21st day of January, 1892, John L. Dodge, plaintiff herein, as plaintiff, commenced an action in this court against Hale Cowley and Robert E. Lawrence, administrator of the estate of Flora Cowley, deceased, and others, to foreclose the said mortgage herein mentioned on the premises described in the policy sued on in this action (a copy of petition in said action of John L. Dodge against said Hale Cowley and others, together with a copy of the mortgage sued on herein, above mentioned, is hereto attached and made a part of these facts and marked exhibit 'A' and 'B' respectively); that thereafter, on the 24th day of October, 1892, the said John L. Dodge, as plaintiff, recovered a judgment in said cause which has never been...