56 P. 50 | Cal. | 1899
This is an action upon a fire insurance policy, in which the loss is payable to the plaintiff, as mortgagee of the land upon which the building insured was situated. Judgment was for plaintiff in the superior court, and from the judgment, and an order denying a new trial, the defendants appeal.
There is no charge of fraud or of any misconduct by the respondent which was material to the risk, and there is no apparent reason on the face of the record why, upon principles of justice and fair dealing, the loss should not have been paid. Appellants contend that they are shielded from payment by certain asserted legal defenses. These asserted defenses are substantially as follows: First, that before the fire there was a transfer of the title of the property insured, without notice thereof to appellants; second, that proofs of loss were not made to the proper party; and, third, that the Northwestern National Insurance Company was a mere re-insurer of the American Insurance Company, that there was no privity of contract between the respondent and the Northwestern, and that, therefore, respondent was not entitled to judgment against the Northwestern Company. We do not think that either of these grounds for a reversal is tenable.
1. The policy in question was issued by the appellant the American Insurance Company on September 6, 1893. (For convenience, we will call one of the appellants the “American,” and the other the “Northwestern.”) The premises insured were situated in Los Angeles. At the time of the issuance of the policy the legal title to the land was in James E. Gordon, who had purchased it from J. F. Sullivan, a resident of San Francisco. The amount of the policy was $1,000, and at this date the respondent held a mortgage on the premises, executed by said Sullivan, for a greater amount than $1,000 ; and the loss, if any should occur, was made payable to the respondent, as mortgagee. There was a mortgage clause in the policy, which provided “that this insurance, as to the interest of the mortgagee or trustee only
2. On the next day after the fire, respondent called on said Mulkey, as agent of the American company, and informed him of the fire. Thereupon, for the first time, Mulkey stated that he was no longer agent of said company, that said company’s policies on this coast had been assumed by the Northwestern Company, and that Betts & Silent, of Los Angeles, were the agents. Soon afterward Mr. T. A. Nerney sought out the respondent, and informed him that he was the agent and adjuster of the Northwestern, and took him to the office of Betts- & Silent, and there prepared and caused proof of loss to be made in due form, which proof of loss he sent to George W. Turner, at San Francisco, who was the general agent for the Northwestern; and he (Nerney) assured respondent that the money due for the loss by fire would be paid. It is a fact that Nerney was the agent and adjuster of the Northwestern at Los Angeles, and that Turner was the general agent of the Northwestern. The American and Northwestern were both foreign corporations. These further facts appear: In March, 1894, a written contract was entered into between the American and the Northwestern, by which, in consideration of certain money and property given by the former to the latter, and in consideration of the payment by the American to the North
3. Appellants have argued the third point as though the contract above referred to between the two insurance companies, and their subsequent action carrying it out, amounted to nothing more than the dry, naked contract of reinsurance, under section 2646 et seq. of the Civil Code. But the facts hereinbefore stated show a contract much broader than a mere technical reinsurance. The Northwestern, under the situation here shown, was directly liable to the plaintiff, upon the principle declared and illustrated in Morgan v. Mining Co., 37 Cal. 534; Flint v. Cadenasso, 64 Cal. 83, 28 Pac. 62; Lockwood v. Canfield, 20 Cal. 126; Arnold v. Lyman, 17 Mass. 400, 9 Am. Dec. 154. As was said in Morgan v. Mining Co., supra, “the companies agreed, and the plaintiff manifests his assent by bringing the action.” In Arnold v. Lyman, supra, the court said: “The promise being not to Hutchins expressly, but general in its form, the assent of the creditors made them parties to the promise ;• and this assent is sufficiently proved, -as respects the plaintiffs, by their bringing an action upon the contract.” “The law creates the privity necessary” for the maintenance of this action.
Appellants make some points as to the insufficiency of the evidence to justify some of the findings; but the findings attacked are either unimportant, under the views above ex
We concur: Temple, J.; Henshaw, J.