Klamen v. American Auto. Ins. Co.

• Decision Date: 06 March 1973
• Docket Number: No. 34749,34749
• Citation: 492 S.W.2d 390
• Parties: Harold M. KLAMEN, Executor of the Estate of Louis Mitleider, Plaintiff-Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent. . Louis District
• Court: Missouri Court of Appeals

Page 390

492 S.W.2d 390

Harold M. KLAMEN, Executor of the Estate of Louis Mitleider Plaintiff-Appellant, v. AMERICAN AUTOMOBILE INSURANCE COMPANY, Defendant-Respondent.

No. 34749.

Missouri Court of Appeals, St. Louis District.

March 6, 1973.

Klamen, Summers, Wattenberg & Compton, Norman W. Drey, Jr., Clayton, for plaintiff-appellant.

Thomas, Busse, Cullen, Clooney, Weil & Ottsen, St. Louis, for defendant-respondent.

McMILLIAN, Judge.

Plaintiff appeals from an order of the Circuit Court of the City of St. Louis sustaining defendant's motion to dismiss plaintiff's petition. Defendant's motion to dismiss alleged that: (1) plaintiff was not the proper plaintiff to bring this suit; and (2) the facts alleged in plaintiff's petition did not state facts sufficient to constitute a cause of action. The trial court sustained defendant's motion without comment.

Plaintiff's petition alleged in substance that: plaintiff was the trustee of a deed of trust executed by Will and Alice Johnson on real estate and premises located at 2431 Coleman Street, St. Louis, Missouri; that defendant issued a policy of insurance on the property at 2431 Coleman for the period September 16, 1970 through September 16, 1971, providing '. . . coverage against fire, lightning, and extended coverage, relating to said premises as aforesaid'; that under the terms of the policy issued by defendant to Will and Alice Johnson, plaintiff was named as the mortgagee and loss payee 'subject to the standard mortgage clause . . .'; that the insured property was damaged by fire on January 17, 1971 causing damage in the sum of $4,000; that plaintiff made demand upon the defendant to pay and defendant refused such demand.

In considering the merits of the plaintiff's appeal, we must determine whether, assuming all the facts pleaded by the plaintiff are true, those facts properly alleged: (1) that the plaintiff was the proper party to bring the suit in question; and (2) a cause of action.

Plaintiff alleged in his petition that he was '. . . named as the mortgagee and loss payee, subject to the standard mortgage clause' under the insurance policy issued by the defendant on property owned by Will and Alice Johnson located at 2431 Coleman Streeet, St. Louis, Missouri.

The rule that a mortgagee has a right to sue in his own behalf on an insurance policy issued to his mortgagor when the mortgagee's interest appears therein is well-established in Missouri. This court in Hartford Fire Insurance Company v. Bleedorn, 235 Mo.App. 286, 132 S.W.2d 1066, 1070, stated that:

'. . . It has also been held that, where the insurance policy provides that the loss shall be paid to the mortgagee as his interest may appear, the right to sue is in the mortgagee alone upon the theory that the clause in the insurance policy gives him the same rights as if the policy had been absolutely assigned to him. Ridge v. Home Ins. Co., 64 Mo.App. 108, 110.

'In Kirchgraber v. Park, 57 Mo.App. 35, 40, the court said: "A contract of insurance against fire, as a general rule, is a mere personal contract between the assured and the underwriter to indemnify the former against the loss he may sustain. But the assured, by an agreement to insure for the protection and indemnity of another person, having an interest in the subject of the insurance, may unquestionably give such third person an equitable lien upon the money due upon the policy to the extent of such interest.' Carter v. Rockett, 8 Paige (N.Y.), 437; Wheeler vs. Ins. Co., 101 U.S. 439 (25 L.Ed. 1055); Nordyke & Marmon Co. v. Gery, 112 Ind. 535 (13 N.E. 683, 2 Am.St.Rep. 219)."

The court in the Hartford case, supra, further held that:

'The rule in Missouri, as applied in the above cases, is in harmony with the general rule which is stated in Corpus Juris as follows: 'Where the insurance is taken out by the mortgagor for the benefit of the mortgagee, or is made payable to...