Franklin Sav. Institution v. Central Mut. Fire Ins. Co.
| Decision Date | 04 January 1876 |
| Citation | 119 Mass. 240 |
| Parties | Franklin Savings Institution v. Central Mutual Fire Insurance Company |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Judgment for the defendant.
S. O Lamb, for the plaintiffs.
W. S B. Hopkins, for the defendant.
The policy of insurance, upon which this suit is brought, contains the provision that "if the assured shall vacate the property in whole or in part, this policy shall be void; this company will not insure unoccupied property." It appears by the agreed statement of facts that the premises were vacated by the occupant before the fire and remained unoccupied up to the time of the fire. It is clear, therefore, that the policy was void as to Kelliher, the original assured, and that he could not maintain an action upon it. Harrison v. City Ins. Co. 9 Allen 231. Keith v. Quincy Mutual Ins. Co. 10 Allen 228.
But the plaintiffs contend that by the indorsement upon the policy a new contract of insurance was made with them, and that they are not affected by the acts of Kelliher in vacating the property insured. The plaintiffs held a mortgage of the property, and on the day after the policy was issued, an indorsement was made upon it that it was to be payable in case of loss or damage to them "as their mortgage claim may appear."
It has been repeatedly held by this court that such an indorsement does not operate as an assignment of the policy, nor as a contract to insure the interest of the mortgagees, but that they can claim only what the party originally insured is entitled to recover under his contract. Fogg v. Middlesex Mut. Ins. Co. 10 Cush. 337. Hale v. Mechanics' Mut. Ins. Co. 6 Gray 169. Loring v. Manufacturers' Ins. Co. 8 Gray 28.
The case at bar falls within these decisions, and is clearly distinguishable from Foster v. Equitable Ins Co. 2 Gray 216, upon which the plaintiff relies. In that case the assured assigned his policy to the mortgagee, who, as required by the company, gave his deposit note, promising to pay all assessments thereafter made against said policy. The court held that the effect of this was to create a new contract of insurance, by which, for a new consideration, the company agreed to insure the interest of the mortgagee, and therefore that he would not be affected by the subsequent acts of the party originally insured. But in the case at bar...
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