Fire v. Wetmore

• Decision Date: 30 April 1863
• Citation: 32 Ill. 221,1863 WL 3177
• Parties: NEW ENGLAND FIRE AND MARINE INSURANCE COMPANYv.GEORGE H. WETMORE et al.
• Court: Illinois Supreme Court

32 Ill. 221

1863 WL 3177 (Ill.)

NEW ENGLAND FIRE AND MARINE INSURANCE COMPANY

v.GEORGE H. WETMORE et al.

Supreme Court of Illinois.

April Term, 1863.

APPEAL from Circuit Court of Knox County.

Assumpsit by George H. Wetmore, M. A. Wetmore and Charles Long against appellant, upon a policy of insurance against loss by fire. So much of condition number XI, annexed to the policy and referred to by the court, as is material and not otherwise stated by the court, is as follows: “Insurance once made may be continued for such further time as may be agreed on, the premium required therefor being paid and indorsed on the policy, or a receipt given for the same; and all insurances, original or renewed, shall be considered as made under the original representation, in so far as it may not be varied by a new representation in writing, which in all cases, it shall be incumbent on the party insured to make, where the risk has been changed, either within itself or by the surrounding or adjacent buildings; and if, at or before the time of renewing any policy of insurance on property where the risk has been increased by the erection of buildings, or by the use or occupation of the premises insured, or of the neighboring premises, the assured shall fail to give information thereof, said policy and renewal shall be void and of no effect.”

The renewal receipt referred to by the court is as follows: “New England Fire and Marine Insurance Company, of Hartford, Renewal Receipt No. 5, Galesburg Agency. Received of Stewart & Scroggs seven 50/100 dollars, being the premium on six hundred dollars, insured under policy No. 2, which is hereby continued in force for one year, to wit, from the 17th day of March, 1860, until the 17th day of March, 1861, at noon.

N. M. WATERMAN, President.

“GEO. D. JEWETT, Secretary.

“Countersigned at Galesburg, this 19th day of March, 1860.

“J. P. DORMAN, Agent.

The clauses of the policy, and the conditions thereto annexed, the evidence and instructions, except as already stated, sufficiently appear in the opinion of the court.

M. A. Tyler, for appellant.

Douglass & Craig, and Geo. C. Lanphere, for appellees.

BREESE, J.

It appears by the record in this case that one Marvel, on the fifth of November, 1856, executed his notes to one Riggin, and a mortgage to secure their payment on a certain lot in the city of Galesburg, two of which notes and mortgage were, on the 19th of March, 1859, assigned by Riggin to M. A. Wetmore and Charles Long; that George H. Wetmore was the husband of M. A. Wetmore, and, on March 25, 1859, he, with Long, effected a policy of insurance with the appellants on the premises, as “a boarding house,” for one year, against loss by fire, to the amount of nine hundred dollars, their mortgage interest therein. On the 31st of March, 1859, the Wetmores, husband and wife assigned their interest in the policy to Long, with the assent of the company's agent, having previously, on the 25th of March, assigned and delivered to Long their interest in the notes and mortgage, G. H. Wetmore guarantying the payment thereof. In January or February, 1860, Long, with the assent of the company's agent, assigned the policy to Stewart and Scroggs, and delivered the same to them. At the same time, Long assigned and delivered to Stewart and Scroggs the notes and mortgage. It further appears that on the 17th of March, 1860, Stewart and Scroggs paid the agent of appellants a premium on six hundred dollars, for one year, to end on the 17th of March, 1861, for which the agent delivered a receipt called “a renewal receipt,” executed in the usual manner.

It further appears that on the night between the ninth and tenth of March, 1861, about midnight, the building on the lot, without any fault of the insured or of Stewart and Scroggs, was accidentally burnt and entirely consumed. The agent of the appellant was present at the fire, and on the 28th of March Stewart and Scroggs gave the agent notice, in writing, of the loss, and on the 26th delivered to him a particular account of the loss, value of the property insured, by whom owned, duly signed and sworn to, and a certificate of the notary public most contiguous to the place of the fire, as required by the conditions of the policy, all which were satisfactory to the appellants. At the time of the fire, and for some time previous, the house was vacant. On the 15th of July thereafter, Stewart and Scroggs executed and offered to deliver to appellants' agent an assignment of six hundred dollars of the notes, and mortgage, and decree, with power to collect, which he refused to accept. On the 16th of January, 1862, they executed and delivered to the agent a full and absolute assignment of the notes, mortgage and decree, with all their right to the same. The arbitrators agreed upon awarded and determined, before suit was commenced, the amount of loss to be one thousand dollars. The appellants refused to pay, and this action was brought against them, and a judgment recovered for six hundred and thirty-three dollars.

Several objections are made to the recovery in this case; some of which, and the most material, we propose to notice. It is urged by appellants that the plaintiffs below had no interest in the property insured, in the policy, or in the renewal receipt at the time of the fire, and therefore cannot recover in this action.

It is a general principle that, in a fire policy, the insured must have an interest at the time of the loss. The action was brought on the policy by the Wetmores and Long, to whom the policy was executed, and having assigned it with the assent of the insurers, or their authorized agent, the action is properly brought in their name, there being no provision in the policy, or in the charter or by-laws of the company, authorizing an action in the name of the assignee. This seems to be the form in which such actions are usually brought, that is in the name of the assured. It is not true to the extent contended for, that the assured must, in every case, have an interest in the property at the time of the loss, for he may have assigned his interest, with the consent of the insurers, to another party, for whose use the suit is brought in the name of the assured. By no act of the assured can his assignee be deprived of his right to the insurance money, which he would be if the assured was bound to show an interest at the time of the loss.

We do not understand that an assignee of an insurance policy can maintain a suit in his own name, unless it is so authorized by the act incorporating the insurance company, or by the general law. At common law, he could not maintain the action in his own name. Granger v. Howard Ins. Co., 5 Wend., 202. There are numerous authorities to this point, referred to by appellees' counsel. But had not the plaintiff an interest in the insurance at the time of the loss? The amount of interest or kind is not material, so that it was a subsisting interest. This the plaintiff had, at the time of the loss, as they had indorsed the notes when they assigned their interest in the mortgage, and were responsible on their indorsement, and interested that the insurance money should go to the satisfaction of the notes. To that extent their ultimate liability as assignors of the notes and mortgage was lessened. But on principle, it would seem the fact of the assured having no interest in the insurance at the time of the loss cannot affect the right of the plaintiffs to sue and recover for the benefit of their assignee. No act of theirs, after an assignment of the policy with the assent of the insurer, can impair the rights of the assignee. Tilton v. The Kingston Mutual Ins. Co., 1 Seld., 407.

It is also urged that the renewal receipt executed to Stewart & Scroggs was a new and independent contract with them, and if they had an interest in the property at the time it was executed, they must recover, if at all, in their own names.

What is the nature of a renewal receipt like this? It does not contain on its face, any agreement, it merely revives an expiring contract and continues it in force another year. The parties to the original contract are not changed by it, nor any substitution of parties, and it is only valid and binding, as to rights and obligations, by reference to the policy first issued. That is the only contract of insurance, and a recovery must be had upon that, if a recovery is to be had at all.

In the case of Henon v. The Peoria Marine and Fire Ins. Co., 28 Ill., 235, which was an action of covenant on a sealed policy of insurance, which had been renewed by a parol receipt, this court held that, under condition thirteen of the policy, which is identical with condition eleven of this policy, the policy continued itself by its own terms, on the payment of the premium and taking a receipt therefor. This is the mode agreed upon by the parties for continuing the policy, and not by executing a new one. The company has received the premium and given the renewal receipt, the effect of which, as they well understood, was to continue the original policy. These receipts are no new contracts, but merely evidence that the condition of the policy has been complied with by the assured. This disposes of that point.

Another objection made is, that the conditions annexed to the policy, and the application, are a part of the policy, and the stipulations in it are express warranties, and if the risk is changed, the policy is void, and it is not material that the fact complained of did not exist at the time of the fire.

This objection is raised on the fact proved, that for some time previous to the fire, but not when the fire happened, a room attached to the main building had been used as a stable for a horse, and the main building for a saloon in which beer had been sold, and in which a bottle of whisky was seen. In the application for the insurance, the premises are described as a dwelling house with some boarders. Now, it is...