166 Mass. 210 | Mass. | 1896
This is an action on a policy of insurance brought by the mortgagees, to whom the loss was made payable “ as their interest may appear.” The policy is the Massachusetts standard policy, as prescribed by St. 1894-, c. 522, § 60, and it
St. 1894, c. 522, § 60, cl.,7, authorizes slips or riders to be attached to policies modifying the provisions in the body of the policy. The defendant in effect concedes that the provisions of the policy with reference to the mortgagees constitute a contract by the terms of which both parties are bound. One provision
The history of the provisions in the standard policy in favor of a mortgagee is well known. These provisions in their present form are intended to afford to the mortgagee full indemnity to the extent of the insurance and of his interest in the property, unless the policy is avoided by some act of his, or of his agents or of those claiming under him, and the mortgagee in certain events comes under obligation to the insurance company to pay for any increase of risk, and to assign to it his mortgage. The rider in the copy of the policy before us is printed, except that part of it which describes the property and the persons to whom the loss is payable, and if intended to affect the interests of mortgagees it should have been more explicit. Mortgages ordinarily provide that the mortgagor shall keep the premises insured in a certain amount, for the benefit of the mortgagee, in such form and in such companies as the mortgagee shall approve. The policy of the Commonwealth, that such insurance shall not be avoided so as to affect the mortgagee’s interest by the acts of the mortgagor, is shown by the adoption of a standard form containing such a provision, and this is the form which mortgagees usually demand. The provisions contained in the-standard form can be added to or modified by writing or printing across the face of the policy, or on riders attached thereto, any stipulations specially agreed upon; but an intention fundamentally to change the protection afforded to mortgagees by the standard policy ought not to be inferred from ambiguous and doubtful words.
The insurance, as expressed in the rider, is upon a frame building while occupied as a dwelling. The rider also expressly includes as within the policy the following items of property belonging to the dwelling: “ foundations, all landlord’s apparatus and fixtures for heating, lighting, and cooking, storm doors, outside windows, blinds, wire screens, screen doors, and awnings, whether in position or stored in said dwelling, frescoing, and plate glass.” We think that the phrase, “ whether such other insurance applies in same manner or not,” means whether such other insurance covers all the enumerated articles of property, or
If the additional insurance had been procured on the request of the mortgagees, the procuring of it might perhaps be held to be their act, within the meaning of the policy; certainly this would be so if it had been procured for their benefit.
The result we have reached is in accordance with the following decisions upon somewhat similar policies: Hastings v. Westchester Ins. Co. 73 N. Y. 141; Eddy v. London Assurance Co. 143 N. Y. 311; Hartford Ins. Co. v. Olcott, 97 Ill. 439. The decision in Hartford, Ins. Co. v. Williams, 63 Fed. Rep. 925, is the other way, but it is put upon the particular language of the policy, which is as follows: “ It is further agreed that, in case of any other insurance upon the property hereby insured, then this company shall not be liable under this policy for a greater portion of any loss sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein.”
The policy in the case at bar provides that “ in case of any loss or damage, the company, within sixty days after the insured shall have submitted a statement as provided in the preceding clause, shall either pay the amount for which it shall be liable, which amount, if not agreed upon, shall be ascertained by award of referees as hereinafter provided, or replace the property,” etc. Proof of loss was received by the company on September 12, 1894, and within sixty days thereafter the amount of the loss
The plaintiffs are entitled to judgment for $2,775, with interest from November 11, 1894. So ordered. ■
The material portions o£ the rider, written words being printed in Italics, are as follows:
“ On frame building and additions thereto while occupied as a dwelling, situate on west side of Vernon Street, Woburn, Mass.
“ Payable in case of loss to Alpheus H. Hardy, Solomon P. Stratton, and George M. Reed, trustees under will of Thomas C. Wales, mortgagees, as their interest may appear.
“ This insurance includes the following items of property of assured, and belonging to said dwelling : foundations, all landlord’s apparatus and fixtures for heating, lighting, and cooking, storm doors, outside windows, blinds, wire screens, screen doors, and awnings, whether in position or stored in said dwelling, frescoing, and plate glass. Provided, however, that if there shall be any other insurance on said property, this company shall be liable only for such proportion of the loss sustained as the amount insured hereby shall bear to the whole insurance on the property hereby insured, whether such other insurance applies in same manner or not. Other insurance permitted. . . .
“ It is understood and agreed that this policy shall cover loss or damage by lightning to the property hereby insured, whether fire ensues or not, provided, that if there is other insurance upon the property damaged, this company shall be liable for only such proportion of the loss or damage as the amount hereby insured bears to the whole amount insured thereon, whether such other insurance contains a similar clause or not.” '