29 Pa. Super. 149 | Pa. Super. Ct. | 1905
Opinion by
The court below made absolute a rule for judgment for want of a sufficient affidavit of defense, and the defendant appeals. Accepting the averments of the affidavit of defense as true, we have the following facts :
The defendant company issued to George Molaka, the legal plaintiff, a policy of insurance upon a dwelling house of which the latter was the owner. The policy contained a provision that, unless otherwise provided by agreement indorsed thereon, it should become void “if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy; .... or if the hazard be increased by any means within the control or knowledge of the insured.” The insured, shortly after the policy was issued, executed a mortgage upon the property.in favor of Fredericka Klein, the equitable plaintiff, to secure the payment of a loan of $1,000; and, on July 10, 1901, the defendant company noted upon the policy, “ Loss, if any, under this policy first payable to Fredericka Klein, mortgagee, subject to mortgage clause attached,” and at the same time attached the usual mortgage clause. The mortgage clause so attached provided that the insurance as to the interest of the mortgagee only therein should not be invalidated by any act or neglect of the mortgagor or owner
The affidavit of defense avers that, “ if it be true that the said Fredericka Klein has not been fully paid the amount of her mortgage out of the said money so as aforesaid paid under said policy by the said Hamburg-Bremen Fire Insurance Company, the defendant is informed, believes and expects to be able to prove that it was because the said Fredericka Klein voluntarily relinquished her rights upon the said fund.” The learned counsel for the appellee ingeniously contends that
The change of the building to a more hazardous use and the procurement of additional insurance, without having either noted upon the policy of the defendant company, constituted a defense to any claim of Molaka, the insured : McSparran v. Insurance Company, 193 Pa. 184; Yentzer v. Insurance Company, 200 Pa. 325. When the building was destroyed no liability for the loss to Molaka, the mortgagor, upon the part of the company existed. The case of Frederieka Klein, in so far as it was made to appear that she was interested as a mortgagee, was different; as to the amount of her debt the company was not freed from liability because of the breaches of the conditions of the contract by Molaka, the mortgagor. The express provisions of the mortgage clause of the contract which protected the interest of Frederieka Klein, however, also provided that, as between her and the defendant, the company should be subrogated to all her rights under all securities held as collateral to the mortgage debt. While the defendant could not, in strictness, be said to be a surety for Molaka, the circumstances under which the liability arose, gave to the company, by the express provisions of the contract, the rights of a surety. The liability of the company to the mortgagee arose the moment the loss occurred, but, under the terms of the policy, the defendant was not required 'to pay until sixty days had expired. While the liability existed and before the day of payment arrived, the mortgagor, the principal debtor,-assigned to the mortgagee a security collateral to the mortgage, from the proceeds of which her claim ought to have been fully paid. The collateral security thus placed in
The judgment is reversed and a procedendo awarded.