German-American Insurance Company v. Sanders
| Decision Date | 26 February 1897 |
| Docket Number | 1,848 |
| Citation | 46 N.E. 535,17 Ind.App. 134 |
| Parties | GERMAN-AMERICAN INSURANCE COMPANY v. SANDERS |
| Court | Indiana Appellate Court |
From Knox Circuit Court.
Affirmed.
Smiley N. Chambers, Samuel O. Pickens and Charles W. Moores, for appellant.
W. A Cullop, C. B. Kessinger, George G. Reily and J. W. Emison for appellee.
This is an action brought by the appellee against the appellant and Ida Dennison and Willis Robison upon a policy of fire insurance issued by appellant, whereby it insured the appellee, James Sanders, upon his dwelling house, upon certain real estate located in Knox county, Indiana.
The complaint avers, in substance, that in October, 1891, the plaintiff insured his dwelling house against loss from fire from the 7th day of October, 1891, to the 7th day of October, 1894. The policy is made a part of the complaint. In March, 1893, plaintiff conveyed by warranty deed the real estate upon which the dwelling house was situate to Willis Robison, and notified the defendant company of said conveyance, to which it consented, and agreed that said policy should become payable in case of loss during the ownership by said Robison of said property, to him. The defendant company then and there agreed to endorse said fact of said transfer to the person to whom the same had become payable, in writing upon said policy. It neglected wholly to endorse the same on said policy. That said endorsement was not part of said policy was not the fault of plaintiff or said Robison, but wholly the fault or negligence of defendant company; that defendant company then and there informed plaintiff and said Robison that it would waive the endorsement of the same in writing thereon, and that said policy should be valid and payable to said Robison; that at the time of the fire said Robison owned the property and immediately made his proof of loss in writing to said company, as required by the terms of the policy; but that defendant refused to adjust, settle or pay the same; that afterwards on the day of said Robison assigned all his interest in said policy, in writing, to the plaintiff; that at the time of the conveyance by him to Robinson, the note for premium on said insurance policy was due the defendant, and that after said conveyance, and with full knowledge of said transfer, the defendant collected said note from the plaintiff and surrendered it to him; that at the time of insurance, Ida Dennison held a mortgage on the property, which is still unpaid, and it was endorsed on the policy that the loss, if any, was payable to the mortgagee.
The policy contained the following, among other provisions:
Appellant assigns as errors the overruling of the demurrer to the complaint, the overruling of appellant's motion for a new trial, and the overruling of appellant's motion in arrest of judgment.
The first objection made to the complaint is that it does not aver any transfer of the policy by James Sanders to Willis Robison. Appellant claims that this averment is essential to entitle the plaintiff to recover; that when he conveyed the property to Robison he ceased to have any interest in it, and by the terms of the policy it became void, unless the policy was assigned to the purchaser, and the consent of the company to such assignment was had by endorsement in writing upon the same.
New v. German Ins. Co., 5 Ind.App. 82, 31 N.E. 475, is cited in which the court uses the following language: "Insurance policies are contracts of indemnity and are essentially personal in their nature. They relate to the insured rather than to the subject-matter of insurance and at common law were non-assignable. * * * An insured must have an interest in the subject of insurance or the policy will be held a wager contract, and void as against public policy. Having obtained valid insurance if the interest of the policy-holder ceases in the property covered, the policy at once becomes inoperative. There is then no possibility of a loss, consequently no basis for indemnity. The contract being one of indemnity and personal to the insured, it follows that any assignment by him with a transfer of the title to the property transfers no right in the insurance to the assignee, without the consent of the insurer.
This is only one expression of many to the same effect to be found in the authorities.
We agree with counsel that there must be a transfer or assignment of the interest of the insured to the purchaser with the consent of the insurer, thus creating a new contract; and, in addition, where the policy so provides, the consent to the transfer must be in writing endorsed on the policy.
It may be admitted, too, that it has been decided that an assignment proper is a transfer by writing, yet, a transfer need not be in writing. In the absence of a formal transfer in writing which is not necessary, there are many other facts and circumstances which courts will recognize as an assignment. "Delivery is not essential." 2 May on Ins. (3d ed.), 394 and 395.
It must, however, be conceded that stipulations as to the manner in which the consent may be given can be waived, either expressly or by implication. In Moffitt v. Phenix Ins. Co., 11 Ind.App. 233, 38 N.E. 835, it is so held.
In Burnham, etc., Co., v. Insurance Co., 63 Mo.App. 85, the court says: "Notwithstanding there is serious conflict in the decided cases, a large preponderance of authority will be found in favor of the proposition that, even though the policy may require the assent to further insurance, to be evidenced by writing and though there shall be further provision that such a condition shall only be waived in writing, or indorsed on the policy, yet such conditions can be dispensed with by the company, or its agents by oral consent, as well as by such writing indorsed on the policy."
There is not, in words, a direct averment in the complaint that the policy was assigned by Sanders...
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German-Am. Ins. Co. v. Sanders
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