156 Iowa 333 | Iowa | 1912
Plaintiff became a member of the defendant, a mutual assessment insurance association organized
The plaintiff sued on the two policies, and also based his claim for judgment on an alleged adjustment of the loss. The defendant denied liability, for, as it alleged, the fire which consumed the property was set out by the above-named railroad company, and plaintiff, by the clause in the lease quoted, had breached the condition of the policy
As a matter of law, the defendant company was bound by the terms and conditions of the lease at the time that it accepted the application and issued the policies of insurance. Knowing that the said property was upon leased ground and held by leasehold right, it made no investigation as to what were the terms of the lease, and accepted the application and issued the policies without making further investigation. Under these circumstances, in law, it ought to be bound by the terms of the lease. The right of subrogation is not a right that insures the recovery upon any claim that may be made, but is merely the right to substitute the defendant for the plaintiff, as to the rights that he might have in and to the claim for damages against the railroad company occasioned by their negligence. There being no- proof that the fire was occasioned by the railroad company’s negligence, that there would have been a right of recovery if prosecuted, and the defendant having failed to comply with the conditions which are conditions precedent to their right of 'subrogation, namely, the payment of the loss, and the plaintiff having at all times held himself in readiness to grant them every right which he might have had against the railroad company in accordance with the provisions of the said contract of insurance, there is no forfeiture of the plaintiff’s right of recovery as against the defendant upon the said policies of insurance. The claim and loss for insurance, having been fully settled and adjusted by the parties upon a written agreement which was entered into by them, consisted of a proposition by the defendant and an acceptance by the .plaintiff, is binding upon the association, and the plaintiff is entitled to recover thereon.
There was considerable parley as to plaintiff prosecut
To William Gerlach: Whereas you are the holder of policy 35186 of the Grain Shippers’ Mutual Fire Insurance Company and 31998 for five thousand dollars ($5,000) covering property at Sharpsburg, Iowa, said property being elevator and grain and lawn swing factory, and whereas you sustained a loss on said property which the insurance company are claiming was caused by the O. B. & Q. Eailroad, through negligence and allowing sparks from their engine to come in contact with the property, and whereas under the terms of the policies above referred to the company upon making such claim is entitled to subrogation of your right to recover against the railroad .up to the amount of insurance paid, whereas subrogation is to be due upon the payment of the loss: We hereby tender to you the sum of five thousand dollars ($5,000), the amount due on the policies above referred to, and demand subrogation of you to your right of recovery against the O. B. & Q. Eailroad for negligently' setting the fire. Grain Shippers’ Mutual Fire Insurance Association, by Johnston Bros.
On the next day, this offer was accepted in a letter addressed to defendant,, saying: “I hereby accept that offer on the part of Mr. Gerlach, and assure you that we are ready to assign to you our cause of action against the railroad, to the extent of the amount which you pay, and immediately upon the receipt of this amount we will execute a written assignment providing you think a written assignment is necessary to be made from him. Respectfully yours, Wm. Gerlach, by W. M. Jackson, His Attorney.”
Even in the absence of any provision such as contained in this policy, the insurer, upon the payment of loss, is entitled to be subrogated to the cause of action of the insured against the wrongdoer. Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 253 (63 Am. Dec. 618); Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584 (4 Sup. Ct. 566, 28 L. Ed. 527); Hart v. Western R. R. Co., 13 Metc. (Mass.) 99 (46 Am. Dec. 719).
But it is competent for the insured in leasing property to release the lessor from obligation for any injury the lessor may occasion by his negligence. Griswold v. Railroad Co., 90 Iowa, 265; Hartford Fire Ins. Co. v. Railroad, 175 U. S. 91 (20 Sup. Ct. 33, 44 L. Ed. 84). And, of course, the insured having released the wrongdoer, this
In Kennedy Bros. v. Insurance Co., 119 Iowa, 29, a crib with corn therein and some agricultural implements burned, and the policy covering the same, in addition to stipulating for subrogation to all of the rights of the insured against the wrongdoer, provided that the entire policy shall be void “if the insured shall make or have any contract or understanding whereby any person or corporation shall not be liable for any act or neglect in causing the fire.” The premises were leased from a railroad company stipulating that “the risk of all loss, injury, and damages by fire, however caused, being assumed by the said lessees,who in consideration of the leasing of said premises agree to indemnify and save the said lessor harmless from all
In Downs Farmers’ Warehouse Ass’n v. Insurance Co., 41 Wash. 372 (83 Pac. 423), a condition of a policy, expressly providing for subrogation of the insurer to the rights of the assured against any person responsible for the loss, was held to be breached by the insured after the issuance of the policy contracting in the lease from a railroad company to release it from liability for any loss of goods that might be caused by it.
In Niagara Fire Ins. Co. v. Fidelity Title & Trust Co., 123 Pa. 516 (16 Atl. 790, 10 Am. St. Rep. 543), an affidavit, setting up that the policy provided that upon payment of the loss the insured would assign his cause of action against the party whose act or omission caused the same to. tlie company, and that upon tender such assignment had been refused, and that the insured had settled with and released the gas company by whose negligence the loss was caused, was held to set up a good defense. See cases collected in note to Brown v. Insurance Co., 83 Vt. 161 (74 Atl. 1061, 29 L. R. A. (N. S.) 698).
The principle is clearly stated in 2 Wood on Fire Ins. (2d Ed.) section 500, where the author says: “The law is well established that an insurance company which has been compelled to pay, or has paid, a loss covered by its policy, has, after such payment, a right of action against the person who wrongfully caused the fire and loss to the amount such insurance company paid even without any formal assignment by the assured of his claim against the party primarily liable. And the courts have likewise been very firm in supporting the right of the insurance company to bring an action in the name of the assured, and will not
A policy of insurance with or without a clause such as is contained in the policies in suit is merely a contract of indemnity. Upon payment of the loss, the insurer is entitled to subrogation to all the rights, the assured may have against any other person or corporation causing the fire to the extent of such payment, and, where subrogation has been stipulated in. the policy as a condition of recovery, the subsequent voluntary release of the wrongdoer by the assured is a breach of the condition of the policy which will defeat recovery thereon. But this is as far as any of the authorities, save Kennedy Bros. v. Ins. Co., supra, have gone, and aside from what is there said, we have discovered no decision lending support to appellant’s contention that a condition in the lease waiving liability of the lessor’s negligence in event of fire will invalidate a contract of insurance containing a condition such as in these policies, subsequently entered into. Nor is this proposition sound in principal. The insured did not agree, in accepting the policies, that the insurer should be subrogated to any rights other than he might have. The property was on leased ground, as the insurance company well knew. The lease antedated the policies, so that the status of the property was precisely the same at the time of the fire as when the policies were issued. It is not pretended that the insured misrepresented the risk, nor is there any charge of fraudulent concealment. Indeed, the insurance company made no inquiry concerning the conditions contained in the lease, and, not being called upon, the insured gave no information concerning these. All the insured undertook was that the insurance company upon payment of the loss should be subrogated “to all rights of recovery by the insured for the loss resulting therefrom,” and that he would assign these. He did not undertake that there should be any right or
As heretofore observed, Kennedy Bros. v. Insurance Co., supra, was rightly decided. But there is some language in that decision inconsistent with what is here said, and, in so far as inconsistent herewith, must be regarded as overruled.
In 1 Park on Ins. 266, the author says: “It has been
By the offer and acceptance, the parties voluntarily agreed upon the precise amount one was to receive and the other to pay in adjustment of the loss, and, in the absence of any charge of mistake or fraud, they are bound by their agreement, regardless of any defenses which may have existed in favor of the company.
Whether the insurer was charged with knowledge of the condition in the lease need not be considered. The judgment is, — Affirmed.