Franklin v. Nat'l Ins. Co.

• Decision Date: 31 March 1869
• Citation: 43 Mo. 491
• Parties: JOHN FRANKLIN, Respondent, v. THE NATIONAL INSURANCE COMPANY, Appellant.
• Court: Missouri Supreme Court

43 Mo. 491

JOHN FRANKLIN, Respondent,

v.THE NATIONAL INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

March Term, 1869.

Appeal from St. Louis Circuit Court.

Ladue & Birge, and Thayer, for appellant.

I. In an action to recover a loss upon a policy of insurance against fire, it must be affirmatively alleged in the petition that the insured had an insurable interest in the property at the time of insuring, and also at the time of the fire; otherwise no cause of action is shown, and the petition is demurrable. (Williams v. Ins. Co. of North America, 9 How. Pr. 365; The Saddlers' Co. v. Babcock, 2 Atk. 554; Freeman v. The Fulton Fire Ins. Co., 38 Barb. 247; Russ v. The Mutual Benefit Ins. Co., 23 N. Y. 516.) The petition alleges that John Franklin was insured, etc.; and it further alleges that in the policy it was stipulated and agreed that the loss, if any, was to be paid to P. H. French. It appears, therefore, upon the face of the amended petition, that at its very inception the policy sued on was assigned to French, and that he became vested with the entire legal interest in the contract, and so continued to be, as the petition further shows, up to the time of the fire. (Bidwell et al. v. St. Louis Floating Dock & Ins. Co., 40 Mo. 42; The National Ins. Co. v. Crane, 16 Md. 260; Broom v. The Roger Williams Ins. Co., 5 R. I. 394.) But the petition shows that French had no interest in the property, and could therefore sustain no loss. Consequently the derivative right which Franklin claims in the petition appears to amount to nothing, because his assignor, French, sustained no loss. (Peabody v. The Washington Mut. Ins. Co., 20 Barb. 340; Hooper v. The Hudson River Ins. Co., 17 N. Y. 424; Conover v. The Mut. Ins. Co. of Albany, 17 N. Y. 442; Ang. on Ins. § 193; Phil. on Ins. § 84; Conover v. The Mut. Ins. Co., 3 Denio, 254; Tillou et al. v. The Kingston Mut. Ins. Co., 1 Seld. 405; Grosvenor v. The Atlantic Fire Ins. Co., 17 N. Y. 391.)

II. If the contract is one indemnifying French, he, having no interest in the property, cannot be shown to be indemnified, and neither himself nor his assignor can recover. If the contract be one insuring Franklin, and French is a person having no interest in the preservation of the property, but merely appointed to receive the money in his individual right, which is to be paid him in the event Franklin suffers a loss, then the petition shows the policy void on the ground of public policy. (Freeman v. The Fulton Fire Ins. Co., 38 Barb. 247, affirmed in case of Ross v. The Mutual Benefit Life Ins. Co., 23 N. Y. 516; and cases cited above.)

Harding & Crane, for respondent.

I. Respondent had the right to appoint whom he pleased to receive the money in case of loss. Insurable interest in himself is sufficient to sustain the policy. The appointment amounted to no more than an assignment after loss. The appointee could, and in this case did, by his assignment, relinquish all claim upon the fund. Or, if he had no interest in the fund, but was merely named for the purpose of enabling him to collect it for respondent's benefit, the latter could at any time have revoked the appointment, and could have sued in his own name without an assignment from French to him. (Rogers v. The Traders' Ins. Co., 6 Paige, 583; Fink v. The Hampden Ins. Co., 45 Barb. 384.) The interest insured is alleged to have been that of Franklin. There is no pretense that the company caused French to be insured. Such directions in a policy, to pay the amount of loss to particular persons, are very common, and are adopted for convenience or as giving security for a debt.

II. The court below properly refused to set aside a solemn stipulation after judgment on the demurrer had been rendered The appellant chose to rely upon and stand by the demurrer, and his only pretense for praying that he may withdraw his stipulation amounts to nothing more than that he might have been more successful if he had gone to trial on the facts. It would be trifling with the court and with the rights of the respondent to allow appellant's prayer.

WAGNER, Judge, delivered the opinion of the court.

This action was brought to recover on a policy of insurance issued by the appellant to one John Franklin, insuring him against loss or damage by fire on certain property. The loss, if any, by the terms of the policy was made payable to P. H. French. The policy was issued January 12, 1867, and was to continue in force three months. On the 21st of January, 1867, the property insured was destroyed by fire, and the contract at that time remained unchanged by assignment or otherwise. In the subsequent month of February the policy was assigned by French to the Union Savings Association, a banking corporation, and by the said corporation afterward assigned to the respondent. At the return term the appellant appeared and filed its answer setting up various causes of defense, and a replication was filed in due time. Application was then made for leave to withdraw the answer and demur to the petition, and a written stipulation was entered into and signed by the respective attorneys for both parties, whereby it was agreed that the appellant might withdraw its answer and interpose a demurrer...