Powers v. New England Fire Ins. Co.
| Decision Date | 20 July 1897 |
| Parties | POWERS v. NEW ENGLAND FIRE INS. CO. |
| Court | Vermont Supreme Court |
Exceptions from Windham county court; Start, Judge.
Assumpsit by Lafayette C. Powers against the New England Fire Insurance Company on a fire insurance policy. A general demurrer was overruled, and, defendant having waived his right to plead over, judgment was entered for plaintiff. Defendant excepts. Affirmed.
Clarke C. Fitts and Waterman, Martin & Hitt, for plaintiff.
Butler & Maloney, for defendant.
It is claimed that the declaration discloses no promise of the defendant to pay the plaintiff. The policy declared upon is set forth in words and figures, and shows a contract of insurance, the loss, if any, "to be paid sixty days after proof shall have been made." This at least is an argumentative way of alleging that the defendant promised to pay the plaintiff, and is sufficient as against a general demurrer. Can the plaintiff maintain this action? The contract was made with him, the consideration moved from him, the promise was made to him; and the decisions in this state are that a suit to enforce the contract must be brought in the name of the one to whom the promise is made, and from whom the consideration moves. Fugure v. Society, 46 Vt. 362. In Davenport v. Association, 47 Vt. 528, it was held that the beneficiaries could maintain the action, the court construing the contract as containing a promise to pay to them. Many cases from other states have been cited, but they are not authority here, and no reason is disclosed in any of them why we should overturn the well-settled practice and decisions of our own state. A policy of insurance is sometimes made payable to the insured and his assigns, sometimes to the mortgagee of the premises, naming him, and at other times to any one holding a mortgage upon the insured property at the time of the loss, whoever he may be. The effect of the provision is to give a mortgagee a lien upon the insurance money in case of loss, securing him by substituting the proceeds of the policy in place of the property, provided it burns, thus letting the property go to the substantial owner, if the property is mortgaged, as is often the case, to its full value. But this interest of the mortgagee in the policy is an equitable, not a legal, one, and will be protected in a law court. Upton v. Moore, 44 Vt. 552. If a policy is made payable to a mortgagee, the insurer is not at liberty to pay any sum due...
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Girard v. Vt. Mut. Fire Ins. Co.
...So a suit on the policy is well brought in the name of the mortgagor for the use and benefit of the mortgagee. Powers v. New England F. Ins. Co., 69 Vt. 494, 495, 38 A. 148. The rights of the latter in case of loss are wholly derivative, and cannot exceed those of the former. These proposit......
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Charles C. Patterson's Adm'r v. Modern Woodmen of America
... ... Present: ... MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ ... ... OPINION ... right of action on insurance contracts see Powers v ... Fire" Insurance Co. , 69 Vt. 494, 38 A. 148, and cases ... there cited ... \xC2" ... ...
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Louis Girard Et Ux. v. Vermont Mutual Fire Insurance Co.
... ... Webster, and M. H. Alexander ... for the plaintiffs ... Present: ... POWERS, C. J., SLACK, MOULTON, [1] WILLCOX, and THOMPSON, ... ... mortgagor for the use and benefit of the mortgagee ... Powers v. New England F. Ins. Co., 69 Vt ... 494, 495, 38 A. 148. The rights of the latter in case of loss ... are ... ...
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Patterson's Adm'r v. Modern Woodmen of America
...of the question. For additional cases involving the question of the right of action on insurance contracts see Powers v. Fire Insurance Co., 69 Vt. 494, 38 Atl. 148, and cases there Early in the trial defendant moved that the plaintiff be required to elect on which count he relied. The cour......