No. 9209 | Minn. | Mar 29, 1895
' At the close of the plaintiffs’ case, on the trial of this action in the district court, the defendant moved to dismiss the action, on the ground, among others not here material, that the complaint did not state a cause of action. The motion was granted; plaintiffs excepted; and from an order denying their motion for
1. The defendant asserts that the complaint does not state a canse of action, because it states an unconditional contract to pay a definite sum in case of loss, while the contract, as shown by the policy, is a conditional one, to pay such proportion of any loss as the amount named in the policy bears to the whole insurance upon the property; and that hence the complaint should state the amount of such other insurance. The answer to this claim is manifest. The policy is no part of the complaint, which alleges a contract of insurance, and the answer admits it, and, by way of defense, alleges the provision of the policy as to other insurance, and states the amount thereof. This is strictly a matter of defense, under' the pleadings.
2. It is further claimed that the complaint does not state a cause of action, because it does not allege that there was a mortgage on the property described in the policy, the amount remaining unpaid thereon at the time of the fire, and that it had been assigned. The complaint does, in fact, allege that the defendant, upon a consideration paid to it by the plaintiff Ermentrout, issued to him its policy of insurance, and thereby insured him; in the sum of $2,500, against loss or damage by fire to his property, the loss, if any, payable to “the Security Bank of Minnesota, assigned of mortgagee, as interest may appear.” It further alleges a loss, the amount, notice and proof thereof, and that, after the-loss, the Security Bank assigned all of its interest in and claim under the policy to the plaintiff Maxcey. This states a cause of action if the plaintiffs' are properly joined as such. There is some conflict' in the adjudged cases in regard to the right of action upon an insurance policy procured by the mortgagor, payable in case of loss to the mortgagee. This has resulted in many cases from inattention to the language of the policy in each particular case. In cases where the loss is “payable to the mortgagee,” it is an absolute appointment of the mortgagee as payee of the whole loss, and a direction to pay it to him. In such case the mortgagee may bring the action in his own name, without joining the mortgagor, and recover the whole loss, although it exceeds his interest in the property destroyed, for as to
But it is urged that it does not appear from the complaint in this case that the assignee of the mortgagee has any debt against the insured, or any interest in the property described in the policy. The policy implies that the Security Bank had an interest therein, and this interest (whatever it was or is) has been assigned to the plaintiff Maxcey, and he is a proper party to the action to enable him to assert such interest, if any he has. All parties to the policy, or their assignee, are parties to this action, subject to the jurisdiction of the court, and will be bound by any judgment it may award in the premises. This fully protects the defendant, for it has no concern in the state of the account between the plaintiffs, or as to how they shall divide the fund sought to be recovered. Newman v. Home Ins. Co., 20 Minn. 378" court="Minn." date_filed="1874-04-15" href="https://app.midpage.ai/document/eich-v-taylor-7962871?utm_source=webapp" opinion_id="7962871">20 Minn. 378 (422). If it be true, as defendant claims, that the complaint shows no claim to any part of the fund in favor of the plaintiff Maxcey, then it amounts to a disclaimer on his part of any interest therein, and the whole thereof belongs to his coplaintiff, who is entitled to a verdict if the allegations of the complaint are proved. Worley v. State Ins. Co. (Iowa) 59 N.W. 16" court="Iowa" date_filed="1894-05-18" href="https://app.midpage.ai/document/worley-v-state-insurance-7106258?utm_source=webapp" opinion_id="7106258">59 N. W. 16. In any event, then, it was error to dismiss the action as to both plaintiffs.
It is, however, urged by the defendant that the allegation of the complaint to the effect that the plaintiffs are the owners of the policy constitutes a joint cause of action, and that there can be no recovery as to either or both of them without proof of a joint cause
3. The defendant objects to plaintiffs’ assignment of error to the effect that the court erred in granting defendant’s motion to dismiss the action. It is a good assignment of error, for, from the very nature of the error, it is not practicable to be more specific. The action of the court dismissing the case is a ruling upon the trial, similar to an instruction to a jury to return a verdict for the defendant, depending in many cases upon no previous rulings of the court. In this respect it is wholly unlike an order denying a motion for a new trial, for whether or not it is error to deny such motion depends upon the rulings during the trial, or some special matter arising subsequent to the trial. Therefore to assign as error that the court erred in denying such motion is not sufficient. Wilson v. Minnesota Ins. Ass’n, 36 Minn. 112, 30 N. W. 401, has no application to the assignment in question.
Order reversed, and a new trial granted.