| Ill. | May 8, 1894
delivered the opinion of the Court:
The principal grounds relied upon to reverse the judgment of the Appellate Court, affirming the judgment of the circuit court, are the following: First, that the interest of J. H. Million in the property destroyed by fire, and covered by the defendant’s policy, was other than its unincumbered and sole ownership, and that he had no insurable interest therein in his own name; and second, that the court erred in not instructing the jury that all the insurance on the property at the date of the fire should contribute to the loss, and the plaintiff could only recover from the defendant its proportionate share of such loss.
Under the first point relied upon, it is said that the property covered by the insurance was owned by the firm of Million & Bott, and hence the title was not in J. H. Million, and his interest was not of an unincumbered and sole ownership, within the meaning of the policy. While the grain business at Kahoka was transacted in the name of Million & Bott, upon looking into the evidence in the record it will be found that Bott had no real title to the grain covered by the policy. The elevator where the business was transacted, and the ground upon which it was located, were owned by J. H. Million. Bott advanced no money to carry on the business, but under an agreement with Million he took charge of the business at the elevator, and was to receive as a salary one-half of the profits realized out of the business. Under this arrangement Bott can not be regarded as a real owner of the title to one-half of the grain in the elevator at the time the policy issued. His liabilitj1', with Million, to Pacaud & Co. to hold and ship the grain to them or their order, as provided in the warehouse receipts, and his right to share in the profits in payment of his salary, may be regarded as an insurable interest in the property, upon which he could take out a policy for his own benefit. But his interest in the property itself was not one which the plaintiffs were required to disclose when they took out a policy to protect their own interest. Moreover, the provision that the interest of the insured should not be other than an unincumbered and sole ownership in the property insured, in our opinion had no application to Million, but it had reference to the plaintiffs, — the parties who were insured by the policy. The plaintiffs held an insurable interest in the property. They applied to the insurance company for insurance. They, and they alone, made the contract and paid the premium, and the policy was delivered to them containing the following provision : “The Traders’ Insurance Company of Chicago, in consideration of $87.50, do insure J. H. Million against loss or damage by fire to the amount of $3500, on grain, the assured’s property, or held bjr assured in trust or on commission, or sold, but not delivered, while in the Kahoka elevator at Kahoka, Missouri, loss, if any, payable to A. L. Pacaud & Co., as interest may appear.”
While the decisions in the different States may not be entirely harmonious in regard to the person who holds the legal interest and in whose name an action may be maintained, yet, as we understand the subject, the decided weight of authority is, where the party contracts for the insurance, pays the premium, and the company makes the loss payable to such party, the agreement to pay is a contract with the person who pays the consideration, and he has a right of action in his own name, although the insurance is in the name of another. Hathaway v. Orient Ins. Co. 134 N.Y. 409" date_filed="1892-10-01" court="NY" case_name="Hathaway v. Orient Insurance">134 N. Y. 409, is a late case on the subject. In Westchester Fire Ins. Co. v. Foster, 90 Ill. 121" date_filed="1878-09-15" court="Ill." case_name="Westchester Fire Insurance v. Foster">90 Ill. 121, it was held that the person who pays the premium and to whom the loss is payable is the party to sue for the loss. The ground upon which the person to whom loss is payable may maintain a suit in his own name, would seem to be predicated on the fact that he has the legal interest in the contract, and in order to have the legal interest in the contract he must be the party insured.
It will be observed that the policy provided that in case of any other insurance upon the property insured, made prior or subsequent to the policy in suit, assured shall be entitled to recover of the company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount so insured therein. It appears from the testimony that Million & Bott had procured insurance on the property in their own names, amounting to some $6700, which was in force at the time of the fire, in addition to the policy held by plaintiffs, and under the clause of the policy providing for contribution it is claimed by appellant that plaintiffs could, in no event, recover the full amount of the policy. The plaintiffs had no connection whatever with the policies issued to Million & Bott. Those policies were procured by Million & Bott for their own and sole benefit, and the loss, in case of fire, was payable to them. Under such circumstances, was the appellant entitled to claim an apportionment? The appellant had the right to rely on an apportionment in case of other insurance upon the property. The question resolves itself into this: Was there other insurance upon the property,, within the meaning of the policy? We think it plain there was not. We think the provision for apportionment of loss if there should he other insurance, applies only where the insurance covers the same interest. That was not the case-here. The plaintiffs insured their interest in the property and Million & Bott insured their interest. The one was separate and distinct from the other. The case is not different from what it would be if the two parties occupied the relation of mortgagor and mortgagee, where each may insure his own-interest, and the insurance obtained by one has no connection-' with the insurance obtained by the other.
But if there was a doubt in regard to the question, we think it was settled by Niagara Fire Ins. Co. v. Scammon, 144 Ill. 500. It is there said: “It is to be noted that the provision for an apportionment is only to become operative if there-shall be other insurance upon the property, and, as we have seen, insurance which is obtained by a third person, and upon another distinct and insurable interest, can not be regarded as other insurance. We understand the rule to be, that a provision for apportionment of loss if there is other insurance, applies only to cases where the insurance covers the same interest.” See, also, Westchester Fire Ins. Co. v. Foster, 90 Ill. 121" date_filed="1878-09-15" court="Ill." case_name="Westchester Fire Insurance v. Foster">90 Ill. 121; The Insurance Co. 81 N. Y. 415; Fox v. Insurance Co. 52 Me. 333" date_filed="1864-07-01" court="Me." case_name="Fox v. Phenix Fire Ins.">52 Me. 333; Phillips on Insurance, sec.. 359.
The policies obtained by Million & Bott were, after the fire, assigned to the plaintiffs, but that fact has no special bearing on the case.
We find no substantial error in the record, and the judgment will be affirmed.
Judgment affirmed.
Mr. Justice Bailey, dissenting.