Whiting v. Burkhardt
| Decision Date | 15 April 1901 |
| Citation | 178 Mass. 535,60 N.E. 1 |
| Parties | WHITING v. BURKHARDT et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
W. C. Cogswell, for plaintiff.
F. C Gilpatrie, for defendant Burkhardt.
John H Appleton, for defendant Jewell.
Robt. F. Herrick and Albert M. Lyon, for defendant North British & Mercantile Ins. Co.
The assignment by Jewell of all his right and interest in the policy was not a violation of the provision that the 'policy shall be void * * * if, * * * without the assent in writing or in print of the company, * * * this policy [shall be] assigned.' The object of that provision (coupled with the provision declaring the policy void if the property insured is sold) is to prevent the company becoming the insurer of the property of a person who is not acceptable to it. An insurance company has the right to refuse to insure a person whose character is such that the moral risk (to use a term employed in the insurance business) is greater than it is where the same property is owned by an honest man, and is one they do not care to assume. The transfer prohibited by this provision is a transfer of the contract of insurance,--that is to say, a transfer by Guptill and Burkhardt, the persons insured; not a transfer by Jewell, who was the person designated as the person entitled to receive the proceeds of the insurance, if any, due under the contract between the company on the one hand and Guptill and Burkhardt on the other. The distinction is plainly and fully pointed out in Fogg v. Insurance Co., 10 Cush. 337, 346; Phillips v. Insurance Co., Id. 350, 353; Insurance Co. v. Allen, 138 Mass. 24, 28, 29; Merrill v. Insurance Co., 169 Mass. 10, 13, 14, 47 N.E. 439. What Jewell did by assigning his 'right and interest in this policy' was not to transfer the policy but to assign to another his right to receive the proceeds if any, under it; the policy remaining after this assignment, as it was before, the policy of Guptill and Burkhardt. We see no reason why Jewell should not make the assignment made by him. The policy was made payable to him as 'mortgagee, as his interest may appear.' He assigned his right to receive the proceeds, if any, to the assignee of the mortgage in question, and the plaintiff's right to receive the proceeds of the insurance was subject to this clause in the hands of the plaintiff, and could not be held by him for any debt other than the debt...
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