Lervold v. Republic Mut. Fire Ins. Co.
| Decision Date | 08 June 1935 |
| Docket Number | 32289. |
| Citation | 142 Kan. 43,45 P.2d 839 |
| Parties | LERVOLD v. REPUBLIC MUT. FIRE INS. CO. et al. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
Where court rendering judgment requiring fire insurer to pay amount of policy to mortgagee and entitling insurer to subrogation to extent of such payment retained jurisdiction for sole purpose of determining disputes relating to subrogation court held without jurisdiction at subsequent term to render judgment entitling mortgage debtor to credit on mortgage for amount which insurer paid mortgagee, where no appeal had been taken from original judgment.
Provision in by-laws of mutual fire insurer and in policy voiding policy on procurement of additional insurance without insurer's consent is binding, and violation thereof renders policy unenforceable as to insured.
Provision of mortgage clause attached to fire policy constitutes contract between insurer and mortgagee.
Where property owner's procurement of additional fire insurance relieved insurer of liability to owner but not to mortgagee under mortgage clause providing for subrogation to mortgagee's right of recovery without impairment of mortgagee's right to sue, insurer, to extent of payment to mortgagee, was entitled to subrogation, but such subrogation was subordinate to mortgagee's right to recover balance of mortgage debt (Rev. St. 1923, 60--403).
1. Where in an action by plaintiff to recover on an insurance policy judgment was rendered against plaintiff and that the insurance company pay the amount of the policy to the mortgagee and be subrogated to its lien to the extent of the payment, and jurisdiction was retained by the court for the sole purpose of determining disputes relating to the subrogation, and no appeal was taken by the plaintiff, the trial court, at a later term, is without power to render another and different judgment the effect of which is to permit recovery by the plaintiff.
2. A provision in the by-laws of a mutual fire insurance company and in the policy issued by it, that procuring of additional insurance without the company's consent shall void the policy, is binding, and where additional insurance is procured without such consent the policy is void as to the insured.
3. Where the insurance company, for reasons indicated in syllabus, paragraph 2, shall not be liable to the insured but by reason of a mortgage clause reading in part, "On payment to such mortgagee (or trustee) of any sum for loss or damage hereunder, if this Company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment be subrogated to the mortgagee's (or trustee's) right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee's (or trustee's) right to sue; or it may pay the mortgage debt and require an assignment thereof and of the mortgage," was ordered to pay the stipulated sum to the mortgagee, the insurance company, to the extent of such payment, is entitled to be subrogated to the mortgagee's right of recovery; such subrogation to be subordinate to the mortgagee's right to recover the balance of the mortgage debt due it.
Appeal from District Court, Jewell County; William R. Mitchell Judge.
Action by Minnie B. Lervold against the Republic Mutual Fire Insurance Company and the Equitable Life Assurance Society of the United States, wherein the last-named defendant filed cross-petition. From the judgment, the first-named defendant appeals.
Judgment reversed, and cause remanded, with instructions.
W. D Vance and Fred Emery, both of Belleville, for appellant.
Leland Hazard, of Kansas City, Mo. (R. M. Zehring, of Kansas City, Mo., of counsel), for appellees.
This was an action to recover on a fire insurance policy.
One Yohn mortgaged certain real estate and in connection therewith procured a policy of insurance for $1,300 covering a house on the mortgaged premises from the Republic Mutual Fire Insurance Company, hereafter called the appellant. Later he made a larger mortgage to a different mortgagee and paid off the first mortgage. A new mortgage clause was attached to the policy and it was delivered to the mortgagee, which assigned the mortgage and delivered the insurance policy to the Equitable Life Assurance Society, hereafter called the mortgagee. Later, Yohn sold the real estate to the plaintiff. She was unaware of the policy in appellant company, and procured some additional insurance. The house burned. The appellant refused payment, and this action followed.
It is not necessary to detail the pleadings. The policy in question provided that if the insured procured other insurance without the company's consent the policy became void. The mortgage clause attached, among other things, provided: "On payment to such mortgagee (or trustee) of any sum for loss or damage hereunder, if this Company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment be subrogated to the mortgagee's (or trustee's) right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee's (or trustee's) right to sue; or it may pay the mortgage debt and require an assignment thereof and of the mortgage."
Appellant in its answer alleged the procuring of additional insurance by the plaintiff voided the policy as to her, and admitted liability to the mortgagee under the mortgage clause, and claimed subrogation pro rata there under. The case was tried by a jury which found against plaintiff. Later, the court received further evidence and from the record made certain findings of fact which are not in dispute. The journal entry of judgment recites:
No appeal was taken by the plaintiff.
It appears from the record that the appellant and the mortgagee were thereafter unable to agree as to the extent of the subrogation to which appellant was entitled, that is, whether the lien of the appellant was co-ordinate with that of the mortgagee or inferior to it, and on October 26, 1933, the mortgagee filed a cross-petition for a decree to determine the question. On November 2, 1933, the appellant filed an answer claiming equal pro rata rights in the lien of the mortgage. On February 2, 1934, over objection of appellant, the plaintiff was permitted to file an answer in effect denying the right of appellant to subrogation. A hearing was had, and resulted in a judgment in favor of the mortgagee and against the appellant for $1,300 and interest, and that plaintiff and the mortgagee were entitled to have the amount of the judgment, when paid, applied as a credit upon the note and mortgage, and denied to appellant any right of subrogation in and to the lien of the mortgage, and any right, interest, or lien upon the mortgaged real estate. The appellant's motion for a new trial was denied, and it brings the case here for review.
Although a number of errors are specified, they are presented as two questions: First. Can an insured, whose policy has been held void, and who has been denied recovery thereon, from which judgment no appeal is taken, later be entitled to credit on the mortgage for an amount which the insurance company must pay the mortgagee by reason of a mortgage clause attached to the insurance policy? And,
Second. Under such mortgage clause, is the insurance company, to the extent of its payment, entitled to be subrogated to the mortgagee's right of...
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