Maxcy v. New Hampshire Fire Ins.

54 Minn. 272 | Minn. | 1893

Collins, J.

1. The complaint herein, although not as perfect as it should have been, was good, as against a general demurrer. The policy, set out in full, insured Thompson, as owner of the building described, against all direct loss or damage by fire, to the amount of $750. This loss or damage, if any, under the policy, was made payable to one Mitchell, trustee for Emma C. Gregg, as mortgagee, as her interest might appear. It appeared from the pleading that when the property was insured, and when the fire occurred, said Mitchell, as trustee for Mrs. Gregg, held a mortgage upon the premises, executed by Thompson, for an amount greatly in excess of the sum payable under the policy; that no part of this mortgage debt had been paid; that the building was totally destroyed by fire; and it was alleged, by reason of the total destruction, said Mitchell, as trustee, was damaged in the full sum of $9,000. According to the allegations in the complaint, due proof of the loss was made, and the plaintiff had succeeded to the rights of the mortgagee by virtue of an assignment of all her interest in and to the policy, and the cause of action said to have accrued upon the same. The defendant’s counsel point out, as ground for the general demurrer, that it is not directly averred in the pleading that the insured building was of any value, or that, through its destruction, the owner, Thompson, has suffered a loss, or sustained any damage. We are of the opinion that as against a general demurrer, where it is alleged that the property insured has been totally destroyed, and that a mortgagee, to whom the loss has been payable, under the policy, has sustained loss and damage in a specified sum, the complaint sufficiently alleges loss and daniage to the insured owner. When such facts exist the owner must have been damaged, and must have sustained loss. Keeler v. Niagara Fire Ins. Co., 16 Wis. 523. See, also, Blasingame v. Home Ins. Co., 75 Cal. 633, (17 Pac. Rep. 925;) Phoenix Ins. Co. v. Perkey, 92 Ill. 164. This would be the inevitable result in every case, unless we are to assume, contrary to a common-sense view, that the property insured and destroyed had no value, and that loss and damage to the mortgagee by reason of its destruction was not necessarily loss and damage to the owner. The liability of the defendant company cannot exceed the actual cash value of the property when burned, and this value is to be ascertained and estimated from the proofs upon the trial, and under the allegations as to the amount of the loss and damage to the plaintiff, as the assignee of the mortgagee, to whom the loss, if any, was expressly made payable.

2. There was no defect of parties plaintiff. A policy of insurance, by the terms of which a loss thereunder is made payable to a mortgagee, is a contract for the benefit of such mortgagee; and he can enforce the liability in his own name, and without joining the insured. It is a sound doctrine, applicable to simple contracts generally, and to contracts of insurance, that if one make a promise to another for the benefit of, and available to, a third person, the latter can maintain an action upon the promise in his own name. A mortgagee is entitled to recover the full amount of insurance, in case of loss, if such insurance does not exceed the amount due upon and secured by the mortgage. Motley v. Manufacturers’ Ins. Co., 29 Me. 337; Hammel v. Queen Ins. Co., 50 Wis. 240, (6 N. W. Rep. 805;) Tilley v. Connecticut Fire Ins. Co., 86 Va. 811, (11 S. E. Rep. 120;) Roussel v. St. Nicholas Ins. Co., 41 N. Y. Super. Ct. 279; Sanford v. Mechanics’ M. F. Ins. Co., 12 Cush. 541; Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141; Meriden Sav. Bank v. Home Mut. Fire Ins. Co., 50 Conn. 396. And in the case of Graves v. American Live-Stock Ins. Co., 46 Minn. 130, (48 N. W. Rep. 684,) this court assumed such to he the law; holding that a mortgagor’s right to maintain an action in his own name upon a policy containing a clause like that in question depended upon his having paid the debt, or having in some other manner satisfied and discharged the mortgage lien, or, possibly, by alleging and proving that he had been authorized to recover by the mortgagee. Of course, Thompson, as the insured owner of the property, and Mrs. Gregg, as the original mortgagee, might be allowed to intervene in the action, upon proper motion, or, at the instance of the defendant company, either or both might be compelled to interplead and take part in the litigation; but this does not demonstrate anything more than that, under some circumstances, one or both might be proper parties to the action; not that either is a necessary party to the controversy.

(Opinion published 55 N. W. Rep. 1130.)

3. After the cause of action had accrued upon this policy, it became a chose in action, assignable by the party entitled to enforce the liability; and thereupon the assignee was, as the real party in interest, the proper person to bring the action. We need not cite authorities in support of this proposition. The order overruling defendant’s demurrer must be, and is, affirmed.

Vanderburgh, J., absent, took no part.