Griswold v. American Central Insurance , 1 Mo. App. 97 ( 1876 )

Gantt, P. J.,

delivered the opinion of the court.

This suit was on a policy of insurance on a dwelling-house of Cabanné against loss by fire for a period of five years from May 24, 1870. The premium for the whole time, $80, was paid when the policy was issued. The sum insured was $4,000. The property was described as “ his two-story frame dwelling-house on west side of King’s Highway, near present terminus of Lindell avenue, St. Louis, Mo.” Cabanné was, in May, 1870, the owner of the property. On August 6, 1870, he borrowed money from Fuchs, executed to him a deed of trust conveying land adjoining that on which the house stood, or the land itself, and on August 8, 1870, the following memorándum was made on the face of the policy: ‘‘Aug. 8th, 1870. Loss, if any, made payable to F. Fuchs. G. T. Cram, Sec’y.” Fuchs seems to have had possession •of the policy from this date to July, 1875. In September, 1871, Cabanné sold all his land on the west side of King’s Highway to Griswold, subject to the incumbrance in favor ■of Fuchs, and attempted to put Griswold in his place, in all respects, in relation to the land and this policy of insurance. He says he wished to turn over to Griswold “all the papers.” At this time Fuchs seems to have been in Europe, and Cabanné appears to have forgotton that he had the custody of the policy. Not being able to find it, lie thought it was lost or mislaid. In pursuance of his purpose to substitute Griswold for himself, in respect of the land and its incumbrances, he went to the office of defendant in September, 1871. He has no accurate memory of what he did there. He says in general terms that he did whatever was required of him ; and what that was we may infer from the following entry on the policy register of defendant: “No. 3550. Name, J. Charles Cabanné. Term, five years. Commencement of risk, May 24, 1870. Expiration of risk, May 24,1875. Amount insured, $4,000. Kate, 2 per cent. Amount of premium, $80. On his two-story frame dwelling on west side of King’s Highway, near present terminus of Lindell avenue, St. Louis, Mo. August •'8, 1870. Loss, if any, made payable to F. Fuchs. G. T. Gram, Sec’y, etc. September 25th. Transferred to Wm. D. Griswold.” In November, 1872, the house was totally destroyed by fire. Just before the fire, it had been removed from the spot it occupied when insured to another, some 150 feet north of it. In its new position it was still “ on the west side of King’s Highway, near the present terminus of Lindell avenue.”

Proof of loss was made by Griswold, and, payment being refused, suit was brought on the policy, in the name of Fuchs. In July, 1875, Griswold paid to Fuchs the debt' secured by the deed of trust and the policy, and received from him the latter paper. - On November 17, 1875, an amended and supplemental petition was filed in the name of Griswold, and upon it the suit was tried. The facts above detailed appeared in evidence, and the court declared that upon them the plaintiff could not recover. The plaintiff excepted, and appealed to this court. The question is; Did the facts in evidence tend to establish a right of recovery in the plaintiff ?

We have no doubt that if, at anytime after August, 1870, and before September, 1871, the property insured had been destroyed by fire, Fuchs might have recovered for the loss. He was not, in strictness, the assignee of the policy. The relations of insurer and insured continued between Cabanné and the defendant, notwithstanding the memorandum of August 8, 1870. The effect of the memorandum was to make Fuchs the payee of the loss, if any, by fire, contemplated by the contract subsisting between Cabanné and the defendant; and any act done by Cabanné to vitiate the insurance would defeat Fuchs’ right-to receive the loss. Fogg et al. v. Middlesex Mutual Fire Ins. Co., 10 Cush.(Mass.) 337; Hale v. Mechanics’ Mutual Fire Ins. Co., 6 Gray (Mass.), 169. Although Fuchs must sue in his own name, in case of loss, yet Cabanné may be regarded as his trustee for certain purposes.- The memorandum designating Fuchs as payee was made when he became the creditor of Cabanné, and the incumbrancer of the property; and his interest in the policy terminated when his debt was paid by the owner of the property, whether Cabanné or his vendee. Prior to this payment, Fuchs was the only person in whose name suit could be brought to recover the loss. When this payment was made, it operated a transfer to Cabanné, or his vendee, of all Fuchs’ interest in the policy. Holland v. Smith, 6 Esp. 11.

2. When, on the 25th of September, 1871 (the year is fixed by tbe testimony of Cabanné, the day by the memorandum on the policy register), Cabanné visited the office of ■defendant, he had sold the property insured to Griswold. We are forced to infer, from what appears, that he informed the defendant of this, and signified his wish, to substitute Griswold for himself in the policy. We are forced also to infer that the defendant assented to this, waiving all objection founded on the interval which had elapsed since the sale. .Of course the only effect of such a substitution was to continue Fuchs, so long as the debt to him was unpaid, the paime of the loss, to recognize Griswold as the owner -of the house and policy, subject to this debt, and as the beneficiary of the policy for the purpose of its discharge. Griswold was interested directly in keeping the insurance alive. The defendant was at liberty, as suggested by its ■counsel, to decline continuing the insurance after Griswold took Cabanné's place, but it did not do this; on the contrary, it assented to the transfer of the policy to Griswold (subject always to Fuchs' incumbrance), and the consideration of this assent was the continuing of the insurance. Otherwise, a ratable part of the premium paid at the commencement of the risk might have been claimed by Cabanné or his vendee. It is, of course, a pity that so much was left to inference. A very little attention would have made unequivocally plain much which is now to be gathered from indicia, more or less faint, of the meaning of the parties ; but we are of opinion that all the facts on which we found •our judgment may be fairly inferred from what this record ■discloses. On September 25, 1871, no memorandum was made on the policy itself. It seems to have been in the hands of Fuchs, and he was abroad. The entry on the register was very persuasive evidence of the intention of the defendant, and we have no doubt of it. It was not essential that this intention should be manifest by an instrument of writing signed by defendant. In this respect the insurance company and an individual are upon the same footing; and a contract may be inferred from circumstances in-the case of the one precisely as in the case of the other. Sec. 6 of ch. — of Gen. Stat. of Mo. —; Security Fire Ins. Co. v. Ky. M. and F. Ins. Co., 7 Bush. (Ky.) 81; Kennebec Co. v. Augusta Ins. and Bk. Co., 6 Gray (Mass.), 204; Constant v. Ins. Co., 3 Wall. jr. 313; Mar. Dock and Mut. Co. v. McMillan & Son, 31 Alab. 711; Baptist Church v. Brooklyn Fire Ins. Co., 18 Barb. 75; Com. Mut. Mar. Ins. Co. v. Union Mut. Ins. Co., 19 How. 318, 321.

3. The point which has given us most difficulty is that, made by defendant’s counsel on the effect of the removal of the house from the position it first occupied. He claims-that this removal changed the risk, or conclusively and necessarily increased it. If so, the underwriter is discharged;, for it is plain that if another contract is put in the place of that he has made, or if, without changing the nature of the-risk, it be increased in degree, there is an end to his liability. We do not cite authorities on a point so well settled and having so little authority for its support. But we-do not see that the risk was necessarily either changed or increased by the removal of the building, bodily, from one-spot to another. It has been decided that, if a house be-thrown down, a policy against fire effected on the house will not protect the owner of the mass of rubbish which results, from its fall, if that mass be consumed by fire. But that-is a different case from the one we have before us ; nor do-we think there is any analogy between the case at bar and that of goods insured in one warehouse which are removed to, and destroyed by fire in, another. They are insured as. being in a warehouse which perhaps remains untouched by fire, and are destroyed by a conflagation occuring in that to-which they are removed. The description of the goods is. changed, and so is the risk to which they have been exposed. Both these changes are manifest and unequivocal. In the case at bar, the property insured was as exactly within the description contained in the policy after as before its removal, and the effect of the removal upon the risk, either to increase or change it, is, we think, a question of fact, not of law.

4. The counsel for respondent makes the point in his answer and in his argument that it was one of the conditions of the policy, declared in that instrument, that the house should not be removed from its place. We have examined the policy in vain in search of this condition. It is quite true that houses are ordinarily stationary, and until recently their removal from place to place was almost unknown. Of late years such removals, both here and elsewhere, have not been infrequent, and we are rather surprised that the effect of a fire occurring during such removal, or after it, on a policy against loss by fire, has not before this day occupied the attention of courts of justice. We think the instruction given by the Circuit Court was too broad, and reverse the judgment, remanding the case for further proceedings.

All the judges concur.