Plath v. Farmers' Mut. Fire Ins. Ass'n.

• Decision Date: 06 April 1877
• Parties: ERNESTINE PLATH <I>vs.</I> MINNESOTA FARMERS' MUTUAL FIRE INSURANCE ASSOCIATION.
• Court: Minnesota Supreme Court

23 Minn. 479

ERNESTINE PLATH vs. MINNESOTA FARMERS' MUTUAL FIRE INSURANCE ASSOCIATION.

Supreme Court of Minnesota.

April 6, 1877.

Action on a policy of insurance whereby the defendant, in consideration that plaintiff had bound herself to abide by the charter and by-laws of defendant, and had paid $1.25, insured the plaintiff for seven years, from January 18, 1875, in the sum of $1,150, against loss or damage by fire, the amount of insurance being apportioned in the policy as follows: On dwelling-house, $150; on household furniture

therein, $50; on carriages, etc., $135; on farming implements, $80; on threshing machine, $500; on Marsh harvester, $175; on seeder, $60. It was alleged in the complaint, and admitted in the answer, that all the property insured was destroyed by fire on May 18, 1875.

Attached to the policy was a copy of the defendant's by-laws, one of which is as follows:

"Whenever any one hereafter insured shall alienate conditionally by mortgage, his policy shall be void, unless he shall make a representation, in writing, to the secretary, stating the amount and to whom mortgaged, who shall have power to give his assent to said mortgage, or to cancel said policy, as he shall judge proper on examination of the same." By the terms of the policy the defendant agrees to make good all loss by fire, etc., provided (among other things) "the said party insured shall abide by the charter, by-laws, rules, and regulations of the said association, now or hereafter in force." The policy also provides that "if the insured * * * shall mortgage the property, without notifying the secretary, then in every such case the insured shall not be entitled to recover from the association any loss or damage which may occur in or to the property hereby insured, or any part or portion thereof."

In its answer the defendant (among other defences) alleged that, on or about April 16, 1875, the plaintiff duly made and delivered to one Allison a chattel mortgage on the Marsh harvester, threshing machine, and seeder mentioned in the policy, to secure the payment of $299.85, which mortgage was duly filed in the office of the proper town clerk, on April 23, 1875, and that the plaintiff never at any time notified defendant's secretary of such mortgage, nor made any representation in writing, or otherwise, to such secretary, of the existence or amount of such mortgage, or to whom the property described in the policy, or any part thereof, was mortgaged; and that such secretary never gave his assent to such mortgage; and that, by reason of the execution and delivery of such mortgage, without notice to the secretary, the plaintiff rendered the policy null and void, as provided by the terms and conditions of the policy and by-laws.

At the trial in the district court for Brown county, before Hanscome, J., it appeared from the plaintiff's testimony that the mortgage was executed and delivered as alleged in the answer, and that the amount secured thereby was due from plaintiff to the mortgagee.

The evidence offered to show notice by mail to the company, and the charge of the court in regard to the sufficiency of a notice by mail, (which were properly excepted to by defendant,) are stated in the opinion. The court further instructed the jury, under exception by defendant, that, "if the jury find that plaintiff mortgaged any part of the property insured by the policy in question, and did not give notice to the secretary of the defendant, the policy is void as to the property so mortgaged, but is valid as to all the property not mortgaged, and the plaintiff may recover pro tanto." The jury found a verdict for plaintiff for $500.

A case having been settled, and defendant having moved for a new trial (1) on the ground that the verdict was not justified by the evidence, and was contrary to law; and (2) for error of law, occurring at the trial, and excepted to by the defendant, it was stipulated that plaintiff should consent that judgment be entered in her favor for $350, and that she should release all further claim under the verdict; and that, in consideration thereof, the defendant should abandon the first ground of its motion for a new trial. The motion for a new trial was thereupon heard and denied, and the defendant appealed.

Shaw & Levi and B. F. Webber, for appellant.

Cox, Gronlund & Matten and S. L. Pierce, for respondent.

CORNELL, J.

The policy declared on in this case shows that the consideration paid therefor by plaintiff was single and entire. The amount of insurance secured thereby was the gross sum of $1,150, distributed upon several distinct items of property, as therein specifically stated. It is well settled, by a uniform current of authority, that a contract of insurance of this character is an entirety, and indivisible, the sole effect of the apportionment of the amount of insurance upon the separate and distinct items of property named in the policy being to limit the extent of the insurer's risk, as to each such item, to the sum so specified. 2 Pars. Con. (5th ed.) 519; Gottsman v. Penn. Ins. Co., 56 Pa. St. 210; Friesmuth v. Agawam Mut. Fire Ins. Co., 10 Cush. 587; Brown v. People's Mut. Ins. Co., 11 Cush. 280; Lee v. Howard Fire Ins. Co., 3 Gray, 583; Kimball v. Howard Fire Ins. Co., 8 Gray, 33; Lovejoy v. Augusta Mut. Fire Ins. Co., 45 Me. 472; ...