Insurance Co. of Pennsylvania v. Phœnix Insurance Co.
| Decision Date | 15 February 1872 |
| Citation | 71 Pa. 31 |
| Parties | The Insurance Company of Pennsylvania <I>versus</I> The Phœnix Insurance Company. |
| Court | Pennsylvania Supreme Court |
Before AGNEW, SHARSWOOD and WILLIAMS, JJ. THOMPSON, C. J., at Nisi Prius
Error to the District Court of Philadelphia: Of January Term 1871, No. 348.
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J. H. Gendell and E. S. Miller, for plaintiffs in error.—A mortgagee, as such, has no interest in an insurance by the mortgagor: Phillips on Ins., § 405. A "policy for whom it may concern" is for the benefit of those who are, in the contemplation of the parties, making the insurance: 2 Duer on Ins. 30-34; 2 Phillips on Ins., §§ 379-383; De Bolle v. Ins. Co., 4 Wharton 68; Steele v. Franklin Ins. Co., 5 Harris 290.
The assignment was invalid under the last clause of the policy, 1st, because the premium had not been paid, nor the note given therefor secured by the endorsement of the assignee: 2d, because the consent of the insurers was not obtained.
The restriction is valid: Ferree v. Ins. Co., 17 P. F. Smith 373; 1 Phillips on Ins. § 107; 1 Parsons on Marine Ins. 60; and it is doubtful whether a transfer before loss of the amount, if any, that might become due under the policy, would be sustained. The confidential relationship between the insurer and the insured still exists. It would very palpably have been a mere device to avoid the effect of the condition.
The 2d point was improperly reserved: the facts, upon which the point reserved arises, must be either admitted on the record, or found by the jury: Wilson v. Steamboat Tuscarora, 1 Casey 317. There was no evidence of the facts assumed by the court to exist.
J. B. Thayer, for defendants in error.—The words, "for whom it may concern," and loss if any payable to assured or order, imply an intention to cover other interests than that of the insured, and constitute an express waiver of the condition requiring the assent of the insurers to an assignment: 1 Parsons on Ins. 55, 56; Nat. Ins. Co. v. Crane, 16 Md. 260; Brown v. Roger Williams Ins. Co., 5 R. I. 394; Rogers v. The Traders' Ins. Co., 6 Paige 583; 1 Parsons on Ins. 65. The assignment to which the restraining clause in a marine policy is intended to apply, is an absolute assignment, not an assignment to a mortgagee as collateral: 1 Parsons on Ins. 59; Ellis v. Kreutzinger, 27 Missouri 311; Folsomb v. Belknap, 10 Foster 231; Lazarus v. Commonwealth Ins. Co., 5 Pick. 76; Price v. Tower, 1 Gray 426; Mellen v. Hamilton Ins. Co., 17 N. Y. 635. There was an express waiver of the condition when the garnishee, prior to the attachment, and knowing of the assignment, agreed upon a settlement of the loss. Such waiver may be by parol: Penna. Ins. Co. v. Bowman, 8 Wright 89; Buckley v. Garrett, 11 Id. 204. A policy of insurance is transferable like any other chose in action, and without notice to the underwriters, vests an equitable interest in the assignee: 1 Parsons on Ins., p. 52; Godin v. London Ins. Co., 1 Burrows 496; Wells v. Archer, 10 S. & R. 412; 1 Phillips on Ins. 98.
A clause prohibiting assignments after loss, is void: West Branch Ins. Co. v. Helfenstein, 4 Wright 289. A chose in action, equitably assigned, is not liable to attachment: Canal Co. v. Ins. Co., 2 Phila. R. 354; Nesmith v. Drum, 8 W. & S. 9; Watson v. Bagaley, 2 Jones 164; United States v. Vaughan, 3 Binn. 394; Pellam v. Hart, 1 Barr 263; Cromwell v. Brooklyn Ins. Co., 39 Barbour 227; Dickinson v. Philips, 1 Id. 454; Carter v. Rocket, 8 Paige 437; Providence Bank v. Benson, 24 Pickering 204; Drake on Attachment, § 204. An attaching creditor stands upon no better footing than his debtor: United States v. Vaughan, 3 Binn. 394; Dix v. Cobb, 4 Mass. 508; Walker v. Coover, 15 P. F. Smith 430; Drake on Attachment, § 608 et seq.; Walters v. Washington Ins. Co., 1 Iowa 404.
The opinion of the court was delivered February, 15th 1872, by SHARSWOOD, J.
We affirm the judgment upon the opinion given by the learned president of the District Court. The condition contained in the policy against assignment was for the benefit of the insurers and could be waived by them, and even if the question arose upon the record we think there was ample evidence that they did waive it. No exception was taken to the reservation in the court below, and such being the case, we are bound to assume that it was assented to or acquiesced in by all parties as a true statement of the facts. Very great injustice...
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