Fire Ass'n v. Zorn , 82 Colo. 408 ( 1927 )

Mr. Justice Sheaeor

delivered the opinion of the court.

Zorh, defendant in error,' was plaintiff in the trial court, plaintiffs in error were defendants there, and we shall so refer to them here.

On July 15,1919, and prior thereto, defendant Lanning was the owner of the Hipp Theatre building in Julesburg, and on that date mortgaged the property to one Strasser to secure the sum of $7,000. This mortgage was foreclosed, and on June 23, 1923, the property was sold at sheriff’s sale to plaintiff Zorn, to whom a certificate of sale was issued, and on March 24, 1924, a sheriff’s deed was issued to plaintiff, the property not having been redeemed.

July 22, 1923, defendant Fire Association of Philadelphia issued its policy of insurance to A. E. Lanning, insuring the theatre building for $3,500, $100 on furniture and fixtures and $400 on moving picture machines and attachments, which policy had attached thereto a loss payable clause which reads: “Any loss under this policy that may be proved due the assured, shall be payable to the assured and P. J. Zorn, subject, nevertheless, to all the terms and conditions of the policy. Attached to and forming part of Policy No. 5320228 of the Fire Association of Philadelphia, issued at its Julesburg, Colorado Agency. Dated July 22nd, 1923. H. C. Kinsman, Agent. ’ ’

A few weeks after the above policy was issued, defendant Lanning caused another policy to be issued to him on the theatre building by the Aetna Fire Insurance Company for $5,000, which had no loss payable clause attached.

January 5, 1924, a fire occurred in the theatre building which damaged the building to a considerable extent, but did not destroy it. From the time of the sheriff’s sale until about March 24, 1924, Fanning remained in possession of the building. Within a short time after the fire, one Gene Yeldran, an adjuster for the defendant Fire Association, appeared for the purpose of adjusting the loss. About January 8, 1924, the loss was adjusted and the amount agreed upon was the sum of $2,747.50. It was agreed on January 8, 1924, between Fanning and the adjusters of the defendant Fire Association and the Aetna Insurance Company that the loss should be prorated between the two insurance companies as follows: $1,190.15 to the defendant Fire Association, and $1,557.35 to the Aetna Insurance Company. Some time after plaintiff Zorn had received the sheriff’s deed to the theatre building, defendant Fanning made an assignment of the adjusted loss against both companies to the Revenue Department of the United States Government to secure the Department for $1,700 arrears claimed to be due from Fanning for ticket tax.

Zorn claimed the total amount of the adjusted loss against the defendant Fire Association, under the loss payable clause heretofore quoted, on the theory that the policies in the two companies were not concurrent, because, he claimed, that said policies were not issued on the same interests in the building.

Some time after the adjustment of the loss it appears that an agreement was entered into between the defendant Fire Association and the defendant Fanning that the loss sustained by reason of the fire was $2,200.

Plaintiff Zorn then brought this action to recover the sum of $2,747.50, and Fanning refusing to join as plaintiff was made defendant.

This suit was commenced about July 1, 1924. During the latter part of that month defendant Fire Association made application for an order substituting the Treasury Department of the United States Internal Revenue Service, and to be discharged and released from further liability, alleging that it was willing to pay, to whomsoever was entitled thereto, the loss which had been sustained by reason of the fire, to the amount of $2,200, and also alleging that the money was claimed by the plaintiff and by Fanning, and that the United States Treasury Department also claimed an interest in it.

Thereupon, a stipulation was entered into between the plaintiff, the Fire Association and Fanning, by which it was agreed that the Fire Association might pay into the registry of the court the sum of $2,200 and be discharged from all further liability therein.

Following this stipulation, the court on August 5,1924, having found that the parties had agreed upon $2,200 as the amount of damage sustained by reason of the fire, and that the amount had been paid into the registry of the court by the defendant Fire Association, ordered that the association be discharged and released from further liability, and that the Treasury Department of the United States Government be substituted in its stead as a defendant.

After the order of substitution and release of the Fire Association had been made and entered, the government, having refused to submit its interests to the state court, instituted an action in the federal court upon the said two policies of insurance joining as defendants the Aetna Insurance Company, the Fire Association and the plaintiff. In the action in the federal court plaintiff Zorn filed a disclaimer in which he disclaimed any right to recover any sum of money against the Aetna Insurance Company.

The Fire Association demurred to the complaint in the federal court, which was sustained, and judgment was thereupon, on January 22, 1925, rendered in favor of the plaintiff in that court and against the Aetna Insurance Company for the sum of $1,235.29, being that company’s proportionate amount of the $2,200.

During the pendency of the case in the federal court the Fire Association filed its motion in this suit asking that it be reinstated as a defendant, with permission to file an answer and defend against plaintiff in this action and for an order on the clerk, as registrar, to repay to it the $2,200 theretofore deposited in the registry of the court. On January 21,1925, .this motion was sustained, the Fire Association was reinstated as a defendant and was permitted to withdraw the sum of $1,235.29 of the $2,200, leaving a balance in the registry of $964.71. After the Fire Association filed its answer, to which plaintiff replied, plaintiff filed an amended complaint.

To this complaint the defendant Fire Association answered, among other things, that a different cause of action was stated or attempted to be stated in the amended complaint than was stated or attempted to be stated' in the original complaint, and that there was therefore a departure. When the case was called for trial, defendants orally moved the court to dismiss the action on the ground that there was a departure, which was denied.

The court found for plaintiff and gave judgment for $1,190.15. Defendants bring the case here.

During the trial there was evidence tending to show that while Lanning was in possession of the property, after the fire, he caused to be made some repairs, but only such as were necessary to enable him to operate the theatre, and when plaintiff obtained possession he took the property in its damaged condition.

There was also evidence tending to show that the loss sustained by reason of the fire was approximately the amount found and agreed upon by the adjuster and Lanning, and this evidence, if its admission was proper, was sufficient, together with the adjuster’s agreement as to the loss, to support the finding of the court.

However, defendants claim that this evidence was erroneously received because of the stipulation entered into between tbe plaintiff, tbe Fire Association and Lanning, that the Fire Association might pay into court the sum of $2,200 and be discharged from liability, but we do not think so. The defendant Fire Association does not seek to evade liability. In fact, it admits liability to someone to the extent of $964.71. The only question in which it is concerned is as to the amount it should pay.

Defendants’ adjuster determined the amount of the loss as against the Fire Association to be $1,190.15,. and its contention, that the stipulation above mentioned is binding upon the plaintiff, cannot be sustained.

The reinstatement of the Fire Association, its withdrawal of a large portion of the amount deposited, and its defense against plaintiff’s claim, certainly abrogated the stipulation and operated to release plaintiff from its terms. The, admission of that evidence was, therefore, not error.

Neither has Lanning any cause to complain. There was ample evidence to sustain the finding of the trial court that Lanning was not entitled to recover any part of the loss and that he had agreed to keep the property insured for plaintiff’s benefit; also that he had agreed that the amount of any loss sustained might be paid to plaintiff. If Lanning was not entitled to recover, it is, of course, plain that the admission of this evidence was harmless as to him.

From the observations already made it seems quite clear that neither of the defendants is in a position to raise the question of departure.

The other alleged errors do not possess sufficient merit to warrant discussion.

The judgment should be and is affirmed.

Mr. Justice Denison, sitting for Mr. Chief Justice Burke, Mr. Justice Whitford and Mr. Justice Adams concur.