Womble v. Dubuque Fire & Marine Ins. Co.

• Decision Date: 30 October 1941
• Citation: 37 N.E.2d 263,310 Mass. 142
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WOMBLE et al. v. DUBUQUE FIRE & MARINE INS. CO.

310 Mass. 142

37 N.E.2d 263

WOMBLE et al.

v.DUBUQUE FIRE & MARINE INS. CO.

Supreme Judicial Court of Massachusetts, Hampden.

Oct. 30, 1941.

Action by James H. Womble and others, trustees of the Loring St. African Methodist Episcopal Church of Springfield, against the Dubuque Fire & Marine Insurance Company, on a fire insurance policy. Verdict for plaintiffs for $2,052 and defendant brings exceptions.

Exceptions sustained.Appeal from Superior Court, Hampden County; Hammond, Judge.

Argued before FIELD, C. J., and QUA, DOLAN, COX, and RONAN, JJ.

H. M. Ehrlich and A. H. Tavernier, both of Springfield, for plaintiff.

W. Hartstone and H. N. Hartstone, both of Boston, for defendant.

QUA, Justice.

The plaintiffs are ‘trustees of Loring St. African Methodist Episcopal Church, a voluntary association, of Springfield.’ On September 24, 1935, the defendant issued a five year policy of fire insurance in the standard form, G.L.(Ter.Ed.) c. 175, § 99, as amended by St.1934, c. 95, to ‘Loring St. A. M. Church and its legal representatives,’ covering a church building on Loring Street in Springfield, located on premises described in the conveyances hereinafter mentioned. The initials ‘A.M.’ in the policy mean African Methodist. This action is brought to recover for damage to the building by a fire which occurred on January 4, 1939.

No argument has been made before us that the plaintiffs as trustees for the voluntary association are not the parties insured in whose names the action may properly be brought. There had been a previous fire on January 3, 1938, while this same policy was in force, and the defendant had paid its share of the loss to the trustees, and there was evidence that the settlement had been negotiated with them.

The defendant contends that a verdict should have been directed in its favor on the ground that the persons insured had no insurable interest on September 24, 1935, the date of the policy. If the person insured has no insurable interest in the property covered when the policy by its terms would become operative as to that property, the policy never takes effect as valid insurance on the property. McCluskey v. Providence Washington Ins. Co., 126 Mass. 306, 308;Boston Ins. Co. v. Globe Fire Ins. Co., 174 Mass. 229, 54 N.E. 543,75 Am.St.Rep. 303;O'Neill v. Queen Ins. Co., 230 Mass. 269, 270, 119 N.E. 678.

The acquisition later of an insurable interest will not cause the insurance to attach to the property. King v. State Mutual Fire Ins. Co., 7 Cush. 1, 5,54 Am.Dec. 683;Morrison v. Boston Ins. Co., 234 Mass. 453, 456, 125 N.E. 698. But the insured may have an insurable interest in property in which he has no title whatever, legal or equitable. ‘By the law of insurance, any person has an insurable interest in property, by the existence of which he receives a benefit, or by the destruction of which he will suffer a loss, whether he has or has not any title in, or lien upon, or possession of the property itself.’ Eastern Railroad v. Relief Fire Ins. Co., 98 Mass. 420, 423;Williams v. Roger Williams Ins. Co., 107 Mass. 377, 379,9 Am.Rep. 41;Hayes v. Milford Mutual Fire Ins. Co., 170 Mass. 492, 495, 49 N.E. 754. Various applications have been made of this principle. Swift v. Mercantile Mutual Ins. Co., 113 Mass. 287, 288; Fowle v. Springfield Fire & Marine Ins. Co., 122 Mass. 19, 193, 194,23 Am.Rep. 308; Doyle v. American Fire Ins. Co., 181 Mass. 139, 63 N.E. 394;Morrison v. Boston Ins. Co., 234 Mass. 453, 125 N.E. 698;Shumway v. Home Fire & Marine Ins. Co., 301 Mass. 391, 395, 17 N.E.2d 212. And in Wainer v. Milford Mutual Fire Ins. Co., 153 Mass. 335, at page 342, 26 N.E. 877,11 L.R.A. 598, it was said that even a disseisor would have an insurable interest which he could properly describe as ownership. See Sanford v. Orient Ins. Co., 174 Mass. 416, 422, 54 N.E. 883,75 Am.St.Rep. 358.

The evidence of the plaintiffs' relation to the property insured is not as clear and precise as might be desired. Statute 1888, c. 201, incorporated the ‘African Methodist Episcopal Church in Springfield * * * formerly known as the Loring Street Methodist Church and the Union American Church.’ None of the names mentioned in the act is the same as that of the ‘Church’ insured in the policy. Under date of September 1, 1909, one Watson, described as secretary of the ‘Church Extension Society of the African Methodist Episcopal Church’ gave to that society, which was stated to be a Pennsylvania corporation, a mortgagee's deed of the insured property in foreclosure of a mortgage which he recited had been given in 1883 by the ‘Trustees of the Union American Church’ and finally assigned to him in 1899. The mortgage itself and the assignments were not in evidence. Under date of April 14, 1938, which was after the first fire and before the second fire, out of which the present action arose, ‘The Board of Church Extension Society of the African Mothodist Episcopal Church,’ described as a Pennsylvaniacorporation, conveyed the premises by deed to the plaintiffs ‘as trustees of and for the use and benefit of Loring Street African Methodist Episcopal Church.’ Upon the introduction in evidence of the two deeds just mentioned the judge said, ‘Well, title apparently was originally in these plaintiffs or their predecessors, mortgage given, mortgage foreclosed and the foreclosure sale,’ and both counsel assented to this statement. It further appeared that on July 6, 1938, the plaintiffs as trustees filed a petition in the Land Court for registration of their title, which in their petition they alleged they had acquired by the 1938 deed; and that registration was granted on November 15, 1938, before the second fire.

The evidence hereinbefore narrated would not warrant a finding of title in the insureds on September 24, 1935, when the policy was issued. But in addition to the foregoing there was evidence of possession. The secretary of the voluntary association ‘Loring St. African Methodist Episcopal Church,’ or ‘Long St. A. M. E. Church’ as one witness called it, testified that at the time of the trial he had been connected with that church for twenty-one years and had been secretary for eighteen years and was secretary of the ‘trustee board’; that they had been at the same location (the premises described in the policy) until the first fire; and that so far as he knew the church was not a corporation. The pastor testified that he knew nothing about any corporation having to do with the church.

The circumstances of this case are peculiar. Here, on the evidence, is an unincorporated religious association which the jury could believe had used and occupied the church edifice continuously for about sixteen years before the policy was issued in its name. During all this time, so far as appears, the title had stood in the name of an incorporated ‘Church Extension Society’ of the same denomination to which the unincorporated association belonged, by which corporation the premises were ultimately conveyed to the trustees of the unincorporated association which had been occupying them. We think it would be more than mere conjecture and would be a reasonable inference that there was some form of affiliation between titleholder and occupants which gave the occupants, if not a legal interest in the property, at least a prospect which was more than a hope and approached an assurance that their possession would be allowed to continue; that this prospect of being able to keep on in the established location without the expense and loss incident to removal had a value capable, through the medium of appropriate evidence, of being measured in money with no more difficulty than is experienced in assessing damages for various other intangible losses for which the law habitually assesses damages; and therefore that the insureds had an insurable interest in the building when the policy was issued, within the broad definitions of such an interest illustrated by the cases above cited. See also Liverpool & London & Globe Ins. Co., Ltd. v. Bolling, 176 Va. 182, 10 S.E.2d 518. The requirement of an insurable interest when the risk is assumed...