Gillett v. Liverpool & L. & G. Ins. Co.
| Decision Date | 22 December 1888 |
| Court | Wisconsin Supreme Court |
| Parties | GILLETT v. LIVERPOOL & L. & G. INS. CO. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marathon county.
Action on a policy of insurance. Plaintiff held a mortgage on certain real estate of M. A. York & Co., a firm consisting of Mrs. M. A. York and her husband, Solomon. The mortgage was given by that firm to secure an indebtedness of $2,000, which still remains unpaid. The principal value of the mortgaged premises was in a saw-mill situated thereon, and certain machinery and fixtures therein. This mortgage contained a covenant by the mortgagors to keep the buildings on the mortgaged premises insured for at least $2,500, and to assign the policies to the plaintiff as collateral security for the mortgage debt, and, in default thereof, the plaintiff was authorized to effect such insurance, the costs and expenses of which to be added to and become a part of the mortgage debt. The mortgagors having failed to obtain such insurance, the plaintiff, on September 7, 1883, procured from the defendant company the policy in suit. This policy insures M. A. York & Co. against loss of the insured property or damage thereto by fire, for one year, in the sum of $1,000. It contains a stipulation that the same shall be void “if the insured shall have, or shall hereafter make, any other insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon.” It permits $2,000 total concurrent insurance, and provides that “loss, if any, under this policy, payable to J. D. Gillett, Esq., as his interest may appear.” In March, 1884, Mrs. York, without the consent of the defendant company, procured further insurance on substantially the same property, in several other insurance companies, amounting in the aggregate to $4,000. August 16, 1884, the insured property was destroyed by fire. In November, 1884, plaintiff furnished defendant company with proofs of such loss, in which such insurance of $4,000, obtained by Mrs. York, is stated. The defendant refused to pay the insurance written in the policy, and the plaintiff brought this action to recover it. The foregoing facts are conclusively established by the pleadings and the testimony on the trial, to which further reference is made in the opinion. The circuit judge directed the jury to return a verdict for the defendant, which they accordingly did. A motion for a new trial was denied, and judgment entered for the defendant pursuant to the verdict. The plaintiff appeals from the judgment.Silverthorn, Hurley & Ryan, for appellant.
Cate, Jones & Sanborn, for appellee.
LYON, J., ( after stating the facts as above.)
To strengthen his security for the mortgage debt by an insurance upon the mortgaged property, two methods were open to the plaintiff. He might have taken a policy directly to himself, insuring his mortgage interest alone, if he could find an insurer willing to issue such a policy; or he could obtain a policyrunning to the mortgagors, stipulating that the loss, if any, should be paid to him as his interest should appear. Perhaps such a policy would not be an insurance of the mortgage interest, as such, but probably would cover such interest. Either mode would protect the plaintiff's security under his mortgage, but with this difference: had the policy run to himself alone, insuring only his mortgage interest, it would not be defeated by an unauthorized insurance upon the same property, obtained by the mortgagors, while a policy running to the mortgagors, insuring the property generally, (as in the present case,) would be defeated by such unauthorized insurance.
The plaintiff did not stipulate with the agent of the defendant company, Mr. Huntington, for a policy to himself, insuring only his mortgage interest. The only testimony on the subject was given by the plaintiff himself, and is as follows: In answer to the question by his own counsel, “At the time when you applied to Mr. Huntington for this insurance did you state to him what interest you had in the property?” he further testified: “I think I did tell him that I had a mortgage on the property, and wanted to insure my interest in it.” He further testified that he paid the premium for such insurance. Thus, it is undisputed that the plaintiff applied for an insurance upon the mortgaged property to secure his interest therein under his mortgage, without any agreement or reservation as to its form, or the stipulations it should contain. The agent issued the policy in suit upon such application, which gives the plaintiff the...
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