Havens v. Germania Insurance Company

• Decision Date: 17 November 1896
• Parties: Havens et al. v. Germania Insurance Company et al., Appellants
• Court: Missouri Supreme Court

37 S.W. 497

135 Mo. 649

Havens et al. v. Germania Insurance Company et al., Appellants

Supreme Court of Missouri

November 17, 1896

Appeal from Jackson Circuit Court. -- Hon. C. L. Dobson, Judge.

Affirmed.

Gage Ladd & Small for appellants.

(1) Sage had no interest whatever in any of the insurance until after Havens & Richardson were paid in full. It was part of his contract with Havens & Richardson in purchasing the property that he should get it insured for the amount of the purchase money, which was $ 4,250, with interest at the rate of eight per cent per annum from November 4, 1884. It is true that he effected the insurance and paid the premium, but it was done with the money of Havens & Richardson, because the premium necessary to effect the insurance was as much a part of the purchase price of the property as the $ 4,250 itself. (2) Havens & Richardson recovered less than the amount of insurance they were entitled to, but they failed to appeal from the decision of the court and their judgment was paid off on the twenty-fifth day of June, 1887, consequently they were bound by that decision and were entitled to recover no more from the insurance companies although the case was reversed, and they have not claimed or been awarded any more but the court below awarded to Sage and his assigns the additional sum to which Havens & Richardson would have been entitled, and which they could have recovered upon the reversal of the judgment had they appealed. (3) The fact that Havens & Richardson were bound by the original decree, never having appealed therefrom and having received payment in full thereof, thereby precluding themselves from recovering anything more from the insurance companies, certainly did not give Mr. Sage or his assignees any additional rights. The insurance companies are and were entitled to the benefit of their settlement with Havens & Richardson, and the full amount of the insurance, namely $ 4,250, with eight per cent interest thereon from the fourth day of November, 1884, to which Havens & Richardson were actually entitled, as appears from the decision of this court, is the amount which should have been deducted from the full amount of the policies, and only the balance then remaining should have been adjudged to Sage and his assignees. (4) The facts show that these insurance companies were held liable on the policies for twice the value of the property, as found by the court below and affirmed by this court, and all we ask is that they be not required to pay a part of the money to Sage, which belonged to Havens & Richardson, but which they were precluded from claiming and failed to claim because they failed to appeal from the original decree.

Warner Dean & Hagerman and James Hagerman for respondents.

(1) The judgment of the lower court followed the mandate of the supreme court on the former appeal and, therefore, was right. (2) The premiums were paid by Sage, the equitable owner of the mill. The insurance was for his benefit; but, by the arrangement which he made with Havens & Richardson and the insurance companies, the companies were authorized and required to pay such sums due upon the policies as Havens & Richardson might be entitled to under their contract with Sage. If Sage had in some other way discharged his debt to Havens & Richardson, then all the sums due on the policies would have been payable to Sage. Havens & Richardson could waive their right to payment of all or any part of their debt out of the insurance fund. If, as in the actual case at bar, the court in a case where all parties in interest were joined, adjudged Havens & Richardson less out of the insurance fund than the amount of their claim against Sage, and they accepted such sum without exception or protest, the insurance companies certainly are not aggrieved. By such action of the court the liabilities of the companies are not in any way enlarged, and, by complying with the decree, they are effectually protected from ever being called to further account either by Sage or Havens & Richardson. Sage, having contracted for the insurance and paid for it, is entitled to the full benefit of it. It was his insurance. The thing insured was the mill and property. He had the right to require the insurance companies to pay first to his creditors, Havens & Richardson, and then to himself. Havens & Richardson could not take the insurance money and hold the claim against Sage. So far as they got any part of the insurance money, that went toward the extinguishment of their claim against Sage. Pendleton v. Elliott, 67 Mich. 496; State, etc., Ins. Co. v. Updegraf, 21 Pa. St. 513; 24 Am. and Eng. Ency. Law, p. 215.

OPINION

In Banc.

Robinson J.

This is the second appeal of this case to this court. For the detailed facts that led up to, and resulted in, the institution of the original suit, and the final judgment therein, reference is made to the statement as given in the first opinion of this court in the case reported in the 123 Mo. 403.

Generally stated, the original suit was instituted by Havens & Richardson as plaintiffs on several policies of insurance effected by one Sage, on property purchased by him from plaintiffs, and upon which he had agreed to carry insurance to the amount of $ 4,250, the unpaid purchase price of said property due plaintiffs, evidenced by a deed of trust securing same. Plaintiffs' debt, secured by a deed of trust against the property destroyed, was $ 4,250. The insurance effected amounts to $ 8,400. Loss, if any, was payable to plaintiffs as their interest might appear. The property was entirely destroyed by fire on the night of the sixteenth of June, 1885, except a small amount, valued at $ 380, that a short time previously had been removed from the mill by defendant Sage. McAdam and Harrington, who claimed some interest under Sage, were joined as defendants, with the insurance companies, and each files a separate answer claiming an interest in the proceeds of the policies.

At the first trial in the circuit court the insurance companies contended that the extent of their liability was the value of the property destroyed; that section 6009, Revised Statutes, 1879, did not apply. The trial court, taking that view of the law, found the actual value of the property destroyed to be only $ 3,695, and, being less than the amount due from Sage to plaintiffs as evidenced by their notes secured by a deed of trust on the property destroyed, rendered its judgment for plaintiffs against the defendants, Sage, McAdam, and Harrington on their answer in the nature of an interplea and cross bill. From that judgment the defendants Sage, McAdam, and Harrington alone prosecuted an appeal, contending that under section 6009 above named, the insurance companies were liable for the full amount of the policies. Being written to insure real property, and the property being wholly destroyed, they were entitled to the difference between the total amount of insurance and the amount paid by the insurance company on the judgment in favor of plaintiffs as mortgagees.

This court, in an opinion delivered on the sixth day of July, 1894, reported in the 123 Mo. 403, taking the view of the appellants therein, reversed and remanded the cause, with the following recital and direction to the trial court, appearing in the opinion:

"We think the circuit court erred in not...