Lindsay v. Pettigrew

• Decision Date: 17 July 1894
• Citation: 59 N.W. 726,5 S.D. 500
• Parties: LINDSAY, Plaintiff and appellant, v. PETTIGREW, Defendant and respondent.
• Court: South Dakota Supreme Court

5 S.D. 500, 59 N.W. 726 (1894)

LINDSAY,

Plaintiff and appellant,

v.PETTIGREW,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, S.D.

Hon. Frank R. Aikens, Judge

Reversed

Joe Kirby and C. S. Palmer

Attorneys for appellant.

Bailey & Voorhees

Stoddard & Wilson

Attorneys for respondent.

Opinion filed July 17, 1894

FULLER, J.

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 beer 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 that the house was destroyed in about three months after the parties entered into this agreement, and that he was damaged thereby in the sum of $300. While the allegations as to the ownership at the time of the loss might have been more specifically stated, the evidence upon that subject—which is undisputed—clearly settles the question, and there is no merit in respondent’s contention.

Counsel for respondent maintain, in support of the judgment, that, if the complaint alleges and the evidence establishes a cause of action in favor of appellant, it is against some insurance company, for which respondent was acting as agent, and not against the respondent personally; and to this proposition we will direct our attention. It...