Central Trust & Safe Deposit Co. v. Dubuque Fire & Marine Insurance

17 Ohio C.C. (n.s.) 411 | Ohio Ct. App. | 1913

This was an action for the recovery of the amount of a fire insurance policy on certain premises upon which plaintiff held a mortgage. The policy sued upon was originally issued by The German National Insurance Company, and the defendant company was claimed to be liable under an agreement for reinsurance made by it with said German National Insurance Company whereby it agreed to adjust and pay all losses by fire occurring after November 19, 1906, on the buildings described in the policy, sued upon herein. There is no dispute about the facts. The fire occurred within the life of the policy, on September 2, 1907. The loss was practically total and far exceeded the amount of the insurance. The agents of defendant company were promptly notified of the loss the day following the fire, and the adjustment of same was turned over to an adjustment company that acted for the insurance company. The plaintiff, as mortgagee, took the matter up with said adjustment company, but formal proof of loss was not filed with the insurance company .until December 13, 1907. No final action was taken by the insurance company until January 23, 1908, when by letter to the mortgagee it denied any liability under the insurance policy upon this property. Suit was filed by said mortgagee July 31, 1908, .which resulted in a directed verdict in favor of the defendant.

The questions presented in the record are purely questions of law. The fifth defense relied upon by defendant in its answer averred that proofs of loss had not been rendered within sixty days after the fire, and that the insured did not extend in writing the time for the rendering of such proofs of loss, all as required by the terms of the policy, which are set out in the answer. The question raised by this defense is the same as that passed on in the case of Eureka Fire & Marine Ins. Co. v. Gray, 24 C. C., 268, 2 C. C., N. S., 265. In the policy under consideration here, just as in that case, there was no provision which made the policy void or provided that no action could be brought if proofs of loss were not rendered within sixty days as provided for in the policy. That case was affirmed without report by the supreme court in Eureka Fire & Marine Ins. Co. v. Gray, 69 Ohio St., 542.

Three other defenses relied upon by the defendant and separately set up in the second, third and fourth defenses of the answer are respectively: (2) That the subject of insurance was a manufacturing establishment and it ceased to be operated for more than ten consecutive days; (3) that with the knowledge of the insured foreclosure proceedings had been commenced and notice given to sell all property covered by this policy by virtue of a mortgage; and (4) that the building described in the policy became vacant and unoccupied and so remained for ten days. Clauses rendering the policy void upon the happening of either of these conditions were quoted from the policy and urged as complete defenses. Plaintiff denied that these conditions, however, applied as against it as mortgagee, by reason of the language found in the policy contained within lines 56 to 59 inclusive, as follows:

“If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written upon, attached, or appended hereto.”

The interest of plaintiff in the company is obtained by virtue of a provision contained on a slip of paper attached to and made part of the policy of insurance at the time it was written, which reads as follows:

“At the request of the assured, loss under this policy, if any, is hereby made payable to the Central Trust & Safe Deposit Company, as their interest may appear.”

Whether these conditions, which, as between the owner and the insurance company, would clearly have invalidated the policy, have such effect as to the mortgagee depends upon the construction placed upon the language above quoted, found in lines 56 to 59 of the policy.

This language has been directly construed in the case of Farmers’ National Bank v. Delaware Insurance Co., 83 Ohio St., 309, in which it is held that such violation of the provisions of the policy by the insv/ed will not release the insurance company from liability to the mortgagee. This case is directly in point and controls the case at bar.

Messrs. DeCamp & Sutphin, for plaintiff in error. Mr. I. L. Kohl, for defendant in error.

Other courts have put the same construction upon this language: Oakland Home Ins. Co. v. Bank of Commerce, 47 Neb., 717, East v. New Orleans Ins. Assn., 76 Miss., 697; Boyd v. Thuringia Ins. Co., 25 Wash., 447; Welch v. British American Ass. Co., 148 Cal., 223; Senor v. Western Millers' Mutual Fire Ins. Co., 181 Mo., 104; Christenson v. Fidelity Ins. Co., 117 Iowa, 77; Queen Ins. Co. v. Building Assn., 175 Ill., 115; Edge v. St. Paul Fire & Marine Ins. Co., 20 S. Dak., 190.

A different construction has been, put upon this clause by the federal courts in Delaware Ins. Co. v. Greer, 120 Fed. Rep., 916, 57 C. C. A., 188; Vancouver Natl. Bank v. Law Union & Crown Ins. Co., 153 Fed. Rep., 440, and the court below seems to have relied upon this construction instead of being controlled by our own supreme court.

The judgment below will be reversed and judgment entered here for plaintiff in error.

ludgment reversed and judgment for plaintiff in error.