Harrington v. Fitchburg Mut. Fire Ins. Co.

• Decision Date: 05 March 1878
• Citation: 124 Mass. 126
• Parties: Samuel P. Harrington v. Fitchburg Mutual Fire Insurance Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

124 Mass. 126

Samuel P. Harrington v. Fitchburg Mutual Fire Insurance Company

Supreme Court of Massachusetts

March 5, 1878

Argued October 4, 1876; October 15, 1877

Worcester. Contract upon a policy of insurance, dated November 1, 1875 by which the defendant insured Patrick Johnson for the term of one year from November 1, 1875, in the sum of $ 3000 "on his ten tenement frame block," "payable in case of loss to Samuel P. Harrington, mortgagee, as his interest may appear."

The policy contained the following printed provisions "Consent to insure to 3/4 the value," "whenever a building hereby insured shall be unoccupied;" "or if, without the consent of the company, expressed in this policy, the assured shall now have, or shall hereafter make, any other contract of insurance against loss by fire on the property, or any part thereof hereby insured, whether such other contract shall be valid or not against the parties thereto, or either of them," "this policy shall be void." "In case of any other contract of insurance upon the property hereby insured, whether such contract be valid or not, as against the parties thereto, or either of them, the assured shall not, in case of damage, be entitled to recover of this company any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on the property, nor more than a like proportion of three fourths of the actual value of the property insured at the time of the loss or damage." Writ dated March 23, 1878.

Trial in this court, before Devens, J., who reported the case for the consideration of the full court upon the following facts:

In November, 1872, an application in writing was made to the defendant for insurance to the amount of $ 3000, on the property described in the above policy, valued at $ 9000, for the term of three years, by William Bliss, describing himself as the owner of the property. The application set forth the location of the property; described it as a "ten tenement frame block," occupied by "ten tenants as residences only;" and stated that it was "mortgaged to Samuel P. Harrington, payable to same to extent of mortgage claim." Opposite the printed words: "Other insurance. If any, at what office, and how much," was written, "Other insurance permitted."

On November 8, 1875, Patrick Johnson made application to the defendant for insurance on the same property, to the amount of $ 3000, with the same valuation, for the term of three years. The application stated that the applicant was owner of the property; that it was mortgaged for $ 4000 to Samuel P. Harrington, policy to be payable to him; and that it was insured for $ 3000 in the "Old Mutual, Worcester." Opposite the printed headings relating to the situation of the property, the description and occupancy of the buildings, was written the word "renewal." It was agreed that this word referred to the former application by Bliss. The policy in suit was issued on the above application of Johnson.

The house was partially destroyed by fire on December 18, 1875. The plaintiff, at the time of the insurance and of bringing the writ, held a mortgage on the property insured for the sum of $ 4000. At the time the policy was procured and issued, there were two outstanding policies on the same property, obtained by Johnson for his own benefit, of $ 1500 each. Neither of these was in the "Old Mutual, Worcester." After the loss, the defendant company, the two other insurance companies and Johnson agreed that the amount of the loss was $ 1625, and apportioned the same, so that the defendant was to pay $ 812.50, and each of the other companies $ 406.25. This agreement and apportionment was without notice to the plaintiff and without his knowledge. The plaintiff had no actual notice or knowledge of the other insurance.

The building, at the time of the loss, was fitted up for ten tenements, two of which were actually occupied by Johnson and his family, and he was in legal possession of the whole and had control of the same.

The defendant admitted that the property insured was worth at the time of the insurance at least $ 4000, and the plaintiff admitted that, including the policy in suit, the property was insured for more than three fourths its value at the time of insurance.

The plaintiff offered evidence tending to show that the loss was $ 2850, and contended that he was entitled to recover the whole amount of the loss.

If the plaintiff was not entitled to recover, judgment was to be entered for the defendant. If the plaintiff was entitled to recover, and the adjustment was binding on the plaintiff, judgment was to be entered for him for $ 812.50. If the plaintiff was entitled to recover, and was not concluded by the adjustment, the damages were to be assessed by assessors, under instructions whether the plaintiff should recover the whole amount of the loss, or should recover only such portion as the amount insured by the policy in suit bore to the whole amount insured on the property.

The case was argued in 1876, and reargued in 1877.

Judgment for the plaintiff.

H. C. Hartwell, (A. Norcross with him,) for the defendant.

F. P. Goulding, for the plaintiff.

OPINION

Lord, J.

Although the ownership of the equity of redemption had been changed, the policy in suit was substantially a renewal of a former policy upon the same...