Lappin v. Charter Oak Fire & Marine Insurance

58 Barb. 325, 1870 N.Y. App. Div. LEXIS 85

• Court: New York Supreme Court
• Decided: November 14, 1870
• Status: Published

Opinion

By the Court, Johnson, J.

The action is properly-brought in the name of the plaintiff as administrator, if a right of- action accrued to any one, by reason of the destruction of the property, upon the contract of insurance. The agreement on the part of the defendant was, in terms, “ to make good unto the said assured, his executors, administrators and assigns, all such immediate loss or damage not exceeding in amount the sum insured, as shall happen by fire to the property as above specified, from the 7th day of December, 1867, at noon, to the 7th day of December, 1868, at noon.” The plaintiff is the administrator of the assured, and the contract is with him, the assured being deceased; and he prosecutes for the benefit of the person or persons entitled to the moneys recovered on account of such loss, provided the contract remains in force, notwithstanding the change of title to the property insured. (Wyman v. Wyman, 26 N. Y. 253.)

The policy in question was regularly renewed for one year, from and after the 7th of December, 1868. On the 21st of July, 1869, the assured died intestate, and the property insured descended to his heirs at law. On the 9th of November, 1869, the fire occurred which destroyed entirely the property so insured. The plaintiff was appointed administrator on the. 10th of January thereafter, 1870. It thus appears that the property insured had changed hands nearly four months before the loss; but the fire was within the time to which the policy of insurance had been extended. The loss was wholly the loss of the heirs who inherited the property, and in no respect the loss of the estate represented by the plaintiff". They had owned it several months before the fire, and the loss thereby occasioned; and the question arises whether the contract can be enforced in their favor, or whether it remained in force at all, after the death of the assured and the transfer of the title to his heirs. The contract provides that the policy shall not be assignable, before or after loss, without the consent of the company manifested in writing thereon; and further, that “ in case of assignment without such consent, whether of the whole policy, or of any interest in it, the liability of the company shall then cease.’7 It is also provided that “in case of any sale, transfer, or change of title, in the property insured by this company, or of any interest therein, such insurance shall be void and cease.” There is also a further provision as follows: “ And in case of the entry for foreclosure of a mortgage, or the levy of an execution or attachment, or possession by another of the subject insured, without the consent of this company indorsed hereon, this insurance shall immediately cease.” Ho consent,had been indorsed upon the policy by the company, at the time of the fire, and there had been, long before, not only possession by others than the assured, of the subject insured, but a complete change of title also.

It seems clear, therefore, that the policy of insurance, by the most clear and explicit terms and provisions thereof, became void, and ceased to have any binding force, upon the death of the assured, and the vesting of the title to the property insured in his heirs at law. That this was a change of title, from the assured to others, cannot be denied, and it brings the case within the express terms of the policy. The possession of the property insured, by others than the assured, without the consent of the company indorsed upon the policy, also produces the same result. It puts an end to the contract, and renders it no longer obligatory.

It is claimed on behalf of the plaintiff that the policy being, in terms, payable to the administrator of the assured, it cannot be held to mean, or to extend to, a change of title by the decease of the assured, and the descent of the insured property to his heirs, or to possession by his heirs in such an event, but must be held to mean change of title, or of possession, by some act of the assured, or by some operation of law other than that which would flow from the death of the assured intestate. The case of Wyman v. Wyman, (supra,) is relied upon as authority to sustain this proposition. But the two cases, it will be seen, are quite different. In that case the provision was, “ the interest of the insured in this policy is not assignable unless by consent of this corporation manifest in writing; and in case of any transfer or termination of the interest of the insured, either by sale or otherwise, without such consent, this policy shall be void and of no effect.” Emott, J., who delivered the opinion in that case, says, in reference to. this provision: “ The clause is to the effect that the interest of the assured in this policy is not assignable; and it is a transfer or .termination of the interest of the assured in the policy, and not in the premises insured, which, when made without consent, is to avoid the policy under this condition.” And it was held that inasmuch as the policy was a mere personal contract with the assured, and had not been assigned in fact, it had not become void under that provision, but was valid in the hands of the administrator, and might be enforced if it covered the loss. The same construction was given to a provision in policies of insurance almost precisely similar in terms, in Smith v. The Saratoga Mu. Fire Insurance Co., (1 Hill, 497,) and in Phelps v. The Gebhard Fire Insurance Co., (9 Bosw. 404.) But here the very condition exists which was absent in those policies, to wit, the termination of the interest of the assured, “ in the premises insured.” The language is general, and is not limited to a change of title or termination of interest in any particular way, or from any one cause more than another. It is, “ in case of any sale, transfer or change of title in the property insured, or of any interest therein, such insurance shall cease and be void.” Ho matter how the transfer or change is brought about, if it is made at all, in any way, the insurance ceases and becomes void. This provision in the contract, it is to be observed, is not conditioned, or made dependent upon, the consent of the insurers in any form, but is absolute and unconditional. In this respect it differs entirely from the terms of the policy in the case of Burbank v. Rockingham Marine Fire Insurance Co., (24 N. H. 550.) In that case the contract "was “ to insure Samuel Burbank and his heirs, executors, and administrators and assigns the aforesaid property against loss or damage by fire, subject to the provisions and conditions of the charter and by-laws of said corporation.” One of the provisions of the charter was, “ that when any house or other building shall be alienated by sale or otherwise, the policy shall thereupon be void, and be surrendered to the directors of said company to be canceled.” The decision there-turned upon the meaning of the word “ alienatedand it was held that where property descended to the heir of a deceased person intestate, it was not alienated, within the common law definition and meaning of that term, and therefore the change of title, in that case, did not fall within the terms and meaning of that provision of the charter. Here the provision of the policy is not restricted to an alienation of the property insured, but extends to every conceivable transfer, or change of title, or interest.

In Phelps v. The Gebhard Fire Ins. Co. (supra,) there was no provision in the policy on the subject of a transfer of the property insured, but only of the contract, as in the case of Wyman v. Wyman; and besides, the company had renewed the policy to the executors of the assured, to whom the property had been devised. And in Smith v. Saratoga Mu. Fire Ins. Co. (supra,) the provision related to a transfer of the interest of the assured in the contract, only. Heither of those cases has any bearing upon the provision of the contract in the case at bar, in respect to “ any sale, transfer or change of title in the property insured, or of any interest therein.”

There is, as has been seen, in the policy here, the same provision in regard to the assignment of the policy, or of any interest in it, without the consent of the company in writing, as in the cases before cited. And there is also the provision that a change of possession of the property insured, without the consent of the insurers indorsed on the policy, shall render it void. But the change of title is not subject to any such condition; and the question is whether the change of title does not of necessity, by the very terms, and plain meaning of the parties, render the contract void and of no effect. It seems to me it must do so. There is certainly no equity in favor of the heirs, which can operate to keep the contract alive, or continue it in force against the defendants, contrary to the express terms of the instrument. The heirs have paid the defendants nothing, and they have certainly no greater equities against the defendants than a judgment creditor or mortgagee would have had, who might have acquired his title by virtue of judgment or of mortgage -foreclosure. There is no conceivable reason for straining the provisions of the contract, if we were at liberty to do so, in favor of the heirs at law of the insured. The loss would have been payable to the plaintiff as administrator, had it occurred in the life of the intestate, and not been paid to him,

, whether it was so expressed in the policy or not; and it must be presumed, when it is so expressed, that it was intended to provide for payment to the administrator in a proper case. It cannot be presumed that it was intended to provide for payment to the administrator, in a case where, by the express terms of the policy, it was to “ be void and cease.” Full effect may be given to that part of the promise, by applying it to the case of a loss happening under conditions which did not affect the validity of the policy. It was, I think, assumed, if not distinctly held, in Wyman v. Wyman, (supra,) that an action might have been maintained by the administrator, in such a ease as that, against the company, though the question was not before the court for consideration. But that was upon the distinct ground that the policy was still in force, and had not as a contract been subjected to any condition provided for which should render it void. The question before the court in that case, and the only one, was whether the administrator or the heirs at law, or the judgment creditors of the deceased, were entitled to the fund. The . company had paid the loss over for the benefit of any party who might be adjudged entitled to it.’

[Fourth Department, General Term, at Syracuse, November 14, 1870.

I am inclined to the opinion that the policy was also void and of no force or effect, by reason of the property having been described, and insured, as a dwelling-house, when in fact it was used in part as a saloon, which, as the referee finds, increased the risk. The description is made part of the contract, and a warranty by the assured, and it is expressly provided, among other things, that in case "of any misrepresentation or concealment, or omission to make known any fact which increased the hazard, the insurance should be void. But as the case seems entirely clear upon the other point, it is unnecessary to decide this.

The judgment must therefore be reversed, and a new trial ordered, with costs to abide the event.

Mullin, P. J., and Johnson and Talcott, Justices.]