62 Mo. App. 315 | Mo. Ct. App. | 1895
On July 7, 1890, Nellie Neal gave to plaintiff a trust deed to secure the payment of two promissory notes, one for $1,000 and the other for $300, the latter being due July 1, 1891. On the day of executing this deed of trust, Nellie Neal procured from this defendant a policy of insurance, insuring the dwelling house on the lot described in the deed of trust. The policy contained a provision, requiring that, in case of loss, “the insured” should give immediate notice and within thirty days should render a statement, etc., to the defendant, sworn to by the “insured.” The policy contained the further provision that the loss should not become payable until sixty days after notice and satisfactory proofs of loss had been received by defendant. And that no action should be sustainable, unless the “assured” complies with these requirements. On the day of issuing the policy, there was attached thereto what is known as a mortgage clause, which is set out elsewhere. No proofs of loss were made, nor was there any waiver of proofs. No proofs were made by Nellie Neal, presumably, from the fact that she had sold the property to another and the defendant had refused to accept of or permit a transfer of the risk to the purchaser, and canceled the policy as to Nellie Neal. No proofs were made by this plaintiff for the reason that, according to the contention here, none were required of plaintiff to entitle it to recover on the policy. In other words, that the provisions as to notice and proofs of loss did not apply to plaintiff, as mortgagee, under the terms of the mortgage clause aforesaid.
The correctness of plaintiff’s contention is the question for decision. In the first place, it should be noted that a policy issued to a mortgagor, having attached thereto a detailed and specific contract (sometimes called a long form mortgage clause) with the
The statement running through plaintiff’s brief is, that the mortgage clause constitutes the contract with the mortgagee; whereas, it is the policy, as affected by that clause, which makes the contract. Hartford Ins. Co. v. Olcutt, supra.
Now it is provided in the policy that the ‘ ‘insured” shall make proofs of loss; Who is the insured, under a contract of the character here involved? It is necessary to plaintiff’s standing in court that it, as mortgagee, should be regarded as the insured. Eor it is not claiming a recovery here by any derivative right, or through any right of the mortgagor, but through an independent contract between it and the defendant. It could not be otherwise, for, as to the owner or mortgagor, the policy had been canceled before the loss. But while plaintiff’s case concedes that it is insured to the amount of its interest in the property, the claim is that it is not “the insured,” mentioned in the policy,,
But it is insisted that the mortgage clause itself relieves the plaintiff, as mortgagee, from furnishing proofs of loss, in that it provides that the mortgagee’s insurance “shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured.” This clause does not furnish any real aid to the solution of the question, for it, manifestly, does not relieve the mortgagee of any duty which may devolve upon Mm, nor does it enumerate what his duties are. It merely relieves him from injury by the act or neglect of the owner. If it is the duty of the mortgagee to make proofs of loss, the clause quoted can have no application. And so the same may be said of that
It has been decided, as before stated, that a policy with a clause attached, such as appears in this case, constitutes two separate and independent insurances; and that whatever obligations rest upon the owner and mortgagee, as to the insurance company, rest upon them separately. But in the cases from Illinois and New York, above cited, it was not determined what those obligations or conditions were. In another case arising in New York, the owner was an infant of tender years, and the guardian, upon a loss, refused to make proofs. The mortgagee by bill in equity sought to compel the guardian to make proofs, alleging that unless he did, he, the mortgagee, would lose his security. The relief was denied on the ground that the guardian or the owner were neither under any legal obligation to make proofs for the benefit of the mortgagee. Graham v. Phœnix Ins. Co., 12 Hun, 446;
That same mortgagee was in a like manner interested in two other policies from another insurance company, on the same property. Under one of the latter policies, he made proofs of loss, and it was held proper for him to do so; and that, no proof having been made by the owner, he could not have recovered had he not done so. Graham v. Firemen’s Ins. Co., 8 Daly, 421.
Our conclusion is that under the contract it was the duty of plaintiff to see that proofs of loss were made. If made by the owner, they probably would necessarily have covered the condition as applicable to the plaintiff, but not having been made by the owner no recovery can be had.
Since the foregoing was written, our attention has been called to the case of the Southern Home v. B. & L. Ins. Co., lately decided by the supreme court of Georgia, wherein our opinion finds direct support.
2. Plaintiff’s further contention is that no proofs of loss were required by 4he terms of the policy from anyone within a given time. |We think this is not the proper construction of the terms of the policy.
The judgment must be reversed,
