Prince v. Granite State Fire Ins. Co.

• Decision Date: 07 February 1933
• Citation: 164 A. 765
• Parties: PRINCE v. GRANITE STATE FIRE INS. CO. SAME v. COMMERCIAL UNION ASSUR. CO., Limited.
• Court: New Hampshire Supreme Court

164 A. 765

PRINCE

v. GRANITE STATE FIRE INS. CO.

SAME

v. COMMERCIAL UNION ASSUR. CO., Limited.

Supreme Court of New Hampshire. Hillsborough.

Feb. 7, 1933.

Exceptions from Superior Court, Hillsborough; Woodbury, Judge.

Separate actions by Arthur Prince, Harry C. Greene plaintiff in interest, against the Granite State Fire Insurance Company and against the Commercial Union Assurance Company, Limited. Motions for nonsuits in both cases were denied, and defendants bring exceptions.

Judgments for defendants.

Two actions of assumpsit to recover for a fire loss. Trial by jury with verdicts for the plaintiffs, which were set aside by Woodbury, J., upon grounds not now material. At the close of the plaintiffs' evidence the defendants moved for nonsuits, and excepted to the denial of their motions. The facts are stated in the opinion.

Walter E. Kittredge, of Nashua, for plaintiffs.

Thorp & Branch, of Manchester, for defendants.

PEASLEE, Chief Justice.

"Insurance is a contract of indemnity, appertaining to the person or party to the contract, and not to the thing which is subjected to the risk against which its owner is protected. Cummings v. Ins. Co., 55 N. H. 457. The contract of insurance being indemnity against loss, it is essential to its existence that the party insured should have some interest in the thing insured." Lahiff v. Ashuelot Ins. Company, 60 N. H. 75.

If the party named in the insurance policies had no interest in the property, the defendants are not liable to him. The issue as to his interest depends upon the effect of transactions entered into by Greene. They are quite unusual. At some time prior to the issuance of the policy Greene obtained from Prince a blanket power of attorney to convey any real estate which Prince might have in the states of Massachusetts, New Hampshire, and Vermont. Prince never owned any real estate. Greene bought the property in question and directed that the deed be made to Prince. The latter knew nothing of the transaction, and the deed was delivered to Greene, who then took out the insurance in the name of Prince.

It is evident that Prince had no interest in the property. He has not been damaged by the fire, and of course cannot recover anything on that account. Moreover, there is no evidence that Greene was Prince's agent to secure insurance. "If he had not such authority, there was no contract between the parties." Johnson v. Maryland Casualty Company, 73 N. H. 259, 260, 60 A. 1009, 111 Am. St. Rep. 609.

But the plaintiff in interest claims that while Prince cannot recover, the true owner of the property can. No authority for the claim made has been cited, and the only argument advanced is that an insurance policy "is an open contract between the company and any party beneficially interested in the property insured." That he "can step in and take the same rights as the insured could" to the extent of the interest proved. In so far as there is any such rule, it is limited to cases where the policy is so expressed (see Folsom v. Orient Fire Ins. Co., 59 N. H. 54), or where the party insured has a cause of action, the equitable title to which has passed to an assignee. As a stream cannot rise above its source, so the assignee's right cannot exceed that of the assignor before assignment. Since Prince could not recover, Greene cannot recover in the right of Prince. Murchie v. Wentworth, 74 N. H. 3, 64 A. 507, and cases cited.

Nor is this a case where the owner of...