Labonte v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 25 June 1936
• Citation: 186 A. 6
• Parties: LABONTE et al. v. ST. PAUL FIRE & MARINE INS. CO. et al.
• Court: New Hampshire Supreme Court

186 A. 6

LABONTE et al.

v. ST. PAUL FIRE & MARINE INS. CO. et al.

Supreme Court of New Hampshire. Coos.

June 25, 1936.

Transferred from Superior Court, Coos County; James, Judge.

Suit by Selma Stone Labonte and another against the St. Paul Fire & Marine Insurance Company and another, which was tranferred to the Supreme Court on an exception raised by named defendant.

Exception sustained.

Bill in equity, to determine which of the two policies issued to the plaintiff Labonte by the defendant companies was in force on September 13, 1933, when the property insured by both policies was totally destroyed by fire. The facts were found by' the court.

The plaintiff Labonte was the owner of the property when she was divorced on July 11, 1933, from her former husband. The plaintiff Fred C. Cleaveland was appointed receiver on July 21, 1933, to sell the insured real estate and divide the proceeds in accordance with the decree of the court entered in the divorce proceedings. The fire occurred before any sale was effected. At the time of the fire the plaintiffs Edmund Sullivan and Emile Dubey held mortgages on the property, and their respective interests were $848.40 and $636.50.

The St. Paul policy was issued on January 1, 1931, in the sum of $4,000, and originally stood in the name of Mrs. Labonte's husband, but was later transferred to her name. It was payable in case of loss to the mortgagees as their interest might appear. The policy was never returned to Mrs. Labonte, after the transfer was made, and when she and her husband separated she made unsuccessful efforts to locate it. Disclosing the facts to the agents of the defendant Phoenix Insurance Company, Mrs. Labonte obtained from them a policy written by that company in her name in the sum of $4,000, but not mentioning the mortgage interests. She acted honestly and in good faith, and not with the purpose of securing additional insurance. Later she told the agent of the St. Paul Company to cancel its policy, and he agreed to do so. The St. Paul policy was never found until after the fire, and the only record of its cancellation was a memorandum made by the agent.

The policy provided that it might be "canceled at any time at the request of the insured." The court ruled that the plaintiff Labonte had canceled her interest in the St. Paul policy and that no act on the part of the company was necessary in order to complete the cancellation; but as the cancellation was without the knowledge and consent of the mortgagees, their rights were unaffected. No exception was taken by any party to this ruling or to any of the findings.

The trial court transferred the question of law raised by the exception of the St. Paul Company to the denial of its request for a ruling that "if it shall be determined that the Phoenix Insurance Company is liable under its policy * * * that for the purpose of preventing circuity of action it be decreed that the proceeds of the policy of the said Phoenix Insurance Company be first applied in satisfaction of all mortgage indebtedness against said property."

The St. Paul policy contained a provision that "whenever this company shall be liable to a mortgagee for any sum for loss under this policy for which no liability exists as to the mortgagor or owner, and this company shall elect by itself or with others to pay the mortgagee the full amount secured by such mortgage, then the mortgagees shall assign and transfer to the companies interested upon such payment the said mortgage, together with the note and debt thereby secured."

The decree of the court ordered the Phoenix Company to pay all of the interest of the plaintiff Labonte, and the St. Paul...