117 Cal. 561 | Cal. | 1897
Action on a policy of fire insurance which contained a clause against double insurance as follows: “ This entire policy, unless otherwise provided by agreement .... shall be void if the insured now has or shall hereafter make or procure any other contract of insurance .... on property covered by this policy.” The defense relied on is that the insured committed a. breach of this condition by obtaining additional insurance without defendant’s consent.
Plaintiffs loaned a sum of money to one J. O. D. McMahan. In the course of the negotiation of such loan it was agreed that plaintiffs should have as security a mortgage upon land of the borrower in the city of Stockton and a policy of insurance on a building to be erected thereon. The mortgage was executed by McMahan on November 9, 1892; it provided, among other things,, that he would keep the buildings on the land insured to the amount of at least one thousand dollars and assign the policies of insurance to the plaintiffs. One Henderson negotiated the said loan as broker both of the mortgagor and the mortgagees; he was also the local agent for the defendant insurance company; on December 5, 1892, he filled out a blank form of application to-defendant for insurance to the amount of one thousand dollars on McMahan’s building, then in course of erection; the paper was entitled ‘Application and Survey of J. 0. D. McMahan,’ and it was stated therein that the insurance was for the security of a mortgagee; Henderson signed the name of McMahan thereto as applicant. Thereupon he issued on behalf of defendant the policy in suit, wherein it was stated that the Baloise Company ‘does insure ’ J. C. D. McMahan for the term of three years against loss by fire to the amount aforesaid on his said building; loss, if any, payable to said mortgagees. The policy was delivered to the mortgagees; the premium was paid from funds of theirs in the hands of Henderson, but on the completion of the building Mc-Mahan gave to them his note for the amount thereof. After the issuance of this policy, and after the execu
In view of the terms of the agreement by which the two insurance companies submitted to arbitration the question of the amount of the loss, and the provisions of the policy in suit looking to such submission, the contention of respondents that the steps taken by defendant in that matter operated to waive the forfeiture insisted upon, cannot be sustained. (Stockton etc. Works v. Glen’s Falls Ins. Co., 98 Cal. 557; Johnson v. American Ins. Co., 41 Minn. 396.) The question then is whether the insured” procured the second insurance within the
We agree with respondents that McMahan could not become “ the insured ” without his knowledge or consent, but we think they mistake in the assertion that he procured the North American policy, “in total ignorance of the issuance of the Baloise policy.” It is true the court found that McMahan “had no actual personal knowledge” of its issuance; but considering the other facts found this must be held to mean no more than what it
The insured having procured further insurance without the consent of the insurer, the policy sued on became void in virtue of the express provision for such result. (Locey v. Insurance Co. (Cal.), 11 Pac. Rep. 791.) We recommend therefore that the judgment be reversed and the cause remanded with directions to the court below to render judgment for defendant on the findings.
Searls, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed and the cause remanded with directions of the court below to render judgment for defendant on the findings.
McFarland, J., Temple, J., Henshaw, J.