Magoun v. Fireman's Fund Insurance Company
| Decision Date | 20 June 1902 |
| Docket Number | 13,045 - (162) |
| Parties | MARY Y. MAGOUN v. FIREMAN'S FUND INSURANCE COMPANY |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $1,000 and interest upon a fire insurance policy. The case was tried before Ensign, J., who directed a verdict in favor of plaintiff for the sum demanded. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, defendant appealed. Reversed, and new trial granted.
Fire Insurance Policy.
A fire insurance policy insuring the "estate of A.B deceased," is valid and enforceable.
Insurance of Agent's Property.
Whether an agent can issue the valid policy of one of the companies he represents, insuring his own property, or insuring the property of another person, for whom he is acting as agent in charge of such property, without notice of the facts to the insurance company, quaere.
Mortgage Clause.
The policy in issue here, in the standard Minnesota form contained this provision: "If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee, or his agents, or those claiming under him, shall affect such mortgagee's right to recover in case of loss on such real estate." It was also stipulated in the policy that the loss, if any, should be payable to a certain named person, mortgagee, as her interest might appear. Held, that this provision gave to the mortgagee independent insurance, which could not be destroyed by the act or default of the mortgagor, or of any person other than the mortgagee or her agents.
Excessive Concurrent Insurance.
H., of the firm of H. & G., defendant's agents, issuing this policy, was part owner of the insured premises as an heir at law of his mother, who had deceased subsequently to the execution of the mortgage, and he was also one of the makers of the note to secure which the mortgage was given. Held, that his failure, when issuing the policy, to notify the defendant insurance company of these facts, and his failure to inform the company that there was a prior policy upon the property, issued to the mortgagee, could not be attributed to her, nor would that fact invalidate the policy issued by H. & G., although the amount was in excess of the amount permitted as concurrent insurance.
Conveyance in Payment of Mortgage Debt.
Held, upon the evidence, that an agreement under which the mortgagee was to receive a conveyance of the premises in full satisfaction of the mortgage debt was not fully consummated prior to the loss, and consequently that there was no change in the legal title to the premises.
Question for the Jury.
Whether or not, prior to the delivery of defendant's policy, the mortgagee's agent informed Hazen, as one of the agents of the defendant company, that the mortgagee had previously taken out a policy to secure her interest in the mortgaged premises, was in issue at the trial, and was, on the evidence, a question for the jury. Held, that the court erred in taking this question from the jury, and directing a verdict for the plaintiff.
Brown & Kerr and Victor Stearns, for appellant.
McGiffert & Hunter and Baldwin & Baldwin, for respondent.
This action was brought by the plaintiff, as mortgagee, to recover upon a Minnesota standard fire insurance policy insuring a dwelling house, issued by the defendant company, payable to the "estate of Elizabeth L. Hazen and legal representatives," with loss, if any, payable to the plaintiff, as mortgagee, as her interest might appear. It contained this provision:
"If this policy shall be made payable to a mortgagee of the insured real estate, no act or default of any person other than such mortgagee or his agents or those claiming under him shall affect such mortgagee's right to recover in case of loss on such real estate."
The mortgage held by plaintiff was given to secure an indebtedness of $1,800, evidenced, according to the mortgage, by the note of Elizabeth L. Hazen, then owner of the property, but who had deceased prior to the issuance of the policy. Her son, Edward Hazen, was also one of the makers of the note. He was also a member of the firm of Hazen & Getchell, agents for the defendant company at Duluth. His brother C. S. Hazen, and himself were sole heirs at law of the deceased, Elizabeth, their mother, and the owners of the insured property, subject to the mortgage and a settlement of the estate in the probate court. The insurable value of the dwelling house was $2,400. After the decease of Elizabeth, an agent of the plaintiff mortgagee requested Edward Hazen to insure the property, and, it is claimed, then and there informed him that plaintiff had previously procured a policy insuring her interest, as mortgagee, to the amount of $1,800, which, it is to be observed, was the full amount of her claim. The loss was total. At the conclusion of the evidence defendant's counsel moved for a directed verdict in favor of their client, which was denied. The plaintiff's counsel then moved the court to direct a verdict in favor of the plaintiff for the full amount claimed in the complaint, which motion was granted, and such verdict returned. Later, upon a settled case, an alternative motion (Laws 1895, c. 320) was made by defendant's counsel, and was denied. This appeal is from the order denying the alternative motion.
A large number of assignments of error are presented, many of which need no consideration. It is claimed by defendant's counsel: First, that the policy was void upon its face, because made payable to the "estate of Elizabeth L. Hazen and legal representatives"; second, that it was void because it was issued by an agent of defendant company, who was in fact part owner of the property insured, and was also one of the makers of the note secured by the mortgage, -- the position assumed being that he was thereby incapacitated from acting as defendant's agent in the issuance of a policy, -- these facts being known to plaintiff's agent to whom the policy was delivered; third, that it was void because plaintiff had other insurance, which, with that now involved, was in excess of the insurable value; and, fourth, that the policy was avoided because plaintiff had actually purchased the property from the heirs at law in full satisfaction of the note, and thereby had destroyed the right of subrogation as against Edward Hazen, to which defendant would have been entitled, by the terms of the policy, upon payment of the loss. We take these contentions in their order.
1. It is beyond question that a policy insuring the estate of a deceased person against loss by fire is valid and enforceable. This statement is supported by all of the text-books upon the subject of fire insurance, and is based upon the self-evident proposition that an insurance company should not be permitted to issue a policy, so worded by its own agent, take the premium for, and pretend to insure and protect from loss, and then, when the loss occurs, insist that it is not...
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