The Phoenix Assurance Company of London v. Hinds

• Decision Date: 10 October 1903
• Docket Number: 13,295
• Parties: THE PHOENIX ASSURANCE COMPANY OF LONDON v. THOMAS HINDS
• Court: Kansas Supreme Court

73 P. 893

67 Kan. 595

THE PHOENIX ASSURANCE COMPANY OF LONDON v. THOMAS HINDS

No. 13,295

Supreme Court of Kansas

October 10, 1903

Decided July, 1903.

Error from Wyandotte district court; E. L. FISCHER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

FIRE INSURANCE--Mistake in Name of Assured--Rights of Mortgagee. Notwithstanding the provisions of a mortgage clause attached to an insurance policy are made applicable by a literal construction of terms, to changes in ownership of the property after execution and delivery of the policy, yet, where the indemnity is procured and paid for by the mortgagee, and an action for loss by fire is founded upon the contract made by the mortgage clause, the terms of which are expressly made to supersede the conditions of the policy itself, and by mistake, innocently and unintentionally made, a wrong name is inserted in the policy such mistake is not so material as to avoid the contract made between the parties to the mortgage clause.

Fike Bros., Snider & Richardson, and Alden & McFadden, for plaintiff in error.

Miller, Buchan & Morris, for defendant in error.

POLLOCK J. All the Justices concurring.

OPINION

POLLOCK, J.:

J. Q. Hughes, the owner of a city lot, encumbered it by a mortgage. This mortgage was assigned to Thomas Hinds, who applied to, and procured from, the assurance company a policy of insurance, with mortgage clause attached providing for payment of loss under the policy, if any, to him as his interest might appear. At the expiration of this policy Hinds applied for, purchased and procured a second policy, with a like mortgage clause attached. Before the date of the issuance of this policy Hughes had transferred the property to Almira H. Emrick. However, by a mistake of the agent of Hinds, this second policy named one Ida J. Fisher as owner of the legal title to the property. Before the expiration of this last policy the property was burned. This action is brought by Hinds, as mortgagee, against the assurance company, upon the contract made by the mortgage clause, to recover the loss to his security occasioned by the fire. The body of the policy, among other things, contained the following condition:

"This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss."

The defense interposed by the assurance company was based upon this condition in the policy, it being contended that the name of the owner of the property was a material matter. There was judgment for plaintiff. Defendant brings error.

This is not a controversy between the owner of the property and the assurance company based upon the terms of the policy, but is a dispute between a...