Lindsay v. Pettigrew
| Decision Date | 17 July 1894 |
| Citation | 59 N.W. 726,5 S.D. 500 |
| Parties | LINDSAY v. PETTIGREW. |
| Court | South Dakota Supreme Court |
1. When a complaint states that plaintiff was at the time he procured defendant to effect certain insurance, and now is, the owner of the property destroyed by fire, and the evidence admitted without objection conclusively shows that plaintiff owned the property at the time the loss occurred, an objection, made for the first time in this court, that such complaint does not state facts sufficient to constitute a cause of action, in that it fails to allege that plaintiff owned the property at the time of its destruction, is not available.
2. A. person who takes money belonging to another, under an express agreement to procure insurance, and unjustifiably fails to secure the same, or make an effort in that direction, thereby assumes the risk, and becomes liable, in case of loss, to pay as much of the same as would have been covered by the insurance policy for which such person has paid, provided the same had been procured as directed.
Appeal from circuit court, Minnehaha county; Frank R. Aikens, Judge.
Action by Elisha E. Lindsay against Frederick A. Pettigrew. Judgment for defendant, and plaintiff appeals. Reversed.Joe Kirby and C. S. Palmer, for appellant. Bailey & Voorhees (Stoddard & Wilson, of counsel), for respondent.
On the 30th day of September, 1885, and for more than two years thereafter, plaintiff and appellant was the owner of a certain tract of land, on which was situated a frame house worth about $300. On the above-mentioned date, one Nellie D. Pettigrew, through her brother, the defendant and respondent, took a mortgage on said premises to secure a loan for $600. As a part of the transaction, and as a further security, respondent, who was an insurance agent or broker, required appellant to deduct $5 from the proceeds of the loan, as payment for a $250 fire insurance policy, which respondent agreed to secure or effect on said premises for a term of five years, and to make payable, in case of loss, to his sister, the mortgagee, as her interest might appear, and to appellant in case a loss occurred during the life of the policy, after the mortgage indebtedness had been satisfied. Respondent failed to procure or effect the insurance, and on the 6th day of January, 1886, the house, valued at $300, was totally destroyed by fire. Plaintiff paid the indebtedness secured by the mortgage, and instituted this suit against defendant to recover the amount for which he agreed to have the house insured. Upon the foregoing state of facts, which were undisputed, the court directed a verdict and entered judgment in favor of the defendant, and plaintiff appeals.
It is urged by counsel for respondent that the complaint fails to allege that plaintiff was the owner of the property at the date of its destruction by fire, or that he had at that time an insurable interest therein, and that said complaint does not, therefore, state facts sufficient to constitute a cause of action. The complaint states that plaintiff was at the time he procured defendant to effect the insurance, and now is, the owner of the property; and plaintiff also testified at the trial that he was the owner of the property on the day the defendant received from him the $5, and agreed to have the property insured, and that he continued to own said property for more than two years thereafter, and...
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