Dakin v. Liverpool & London & Globe Insurance

Headnote

Proof of loss — on one of several policies in the same company on the same property; payable to the sarnie person — when sufficient for all — Insurance of party “as inten'est may appear” — effect of — loss payable to A B — entitles A B to recover the entire amount, though in excess of his individual loss.

Motion for a new trial on exceptions' ordered to be beard in tbe first instance at the General Term, after a verdict in favor of the plaintiff. This action was brought upon four policies of insurance issued by the defendant upon a tannery in Alpine, Schuyler county. The policies were all similar except as to dates, amounts and number of policy, and amounted in the aggregate to $8,000. The insurance was to “ S. D. Wood & T. W. Moore & Co., as interest may appear. * * * Loss, if any, payable to Lyon & Dakin.” At the time of the issuing of the policies Lyon & Dakin held a mortgage for $5,000 on the property, the whole of which subsequently passed to Dakin, who thereafter conveyed an interest therein to Wood, who already held -a second mortgage for $3,000 upon the property. T. W. Moore & Co. owned the tannery. After a loss had occurred proofs thereof were furnished under one policy, for $2,500, it being stated therein “ that in addition to the amount covered by said policy of said company, there was by the same company other insurance made thereon to the amount of $5,500, as particularly specified in the accompanying schedule, marked ‘A,’ besides which there was no insurance thereon.”

The plaintiff in his complaint set out the issuing of all the poli

cies but demanded judgment for $3,134.40 tbe amount due to him on bis mortgage. Upon tbe trial tbe court allowed tbe complaint to be amended so as to demand judgment for tbe full amount due on all tbe policies. Tbe defendant urged, among others, tbe following exceptions:

First. That proofs of loss were furnished on but one of four policies, while tbe recovery was bad on all. r

Second. That tbe interest of tbe assured was that of a mortgagee only, and that it was not so expressed in tbe deed.

Third. That tbe comt erred in allowing tbe plaintiff to amend bis complaint so as to recover tbe whole amount of tbe insurance.

With reference to these points the court at General Term said :

“ Tbe proofs of loss were sufficient in law as to all four policies. They were identical, except as to dates and amounts. Tbe four policies constitute essentially a single policy and were so treated by tbe proofs of loss. Tbe defendant must be presumed to have knowledge of its own contracts. Tbe proofs of loss were tbe same for each policy. If, therefore, tbe description of each policy bad preceded tbe proofs of loss, it certainly would have been sufficient. How is it different when such description of tbe other three policies follows tbe proof of loss under tbe first policy, and gives notice that such proofs of loss apply equally to tbe other three. In any event tbe reception and retention of these proofs for nearly thirty days without objection on this point, the offer to pay a sum largely in excess of tbe amount insured by any one policy, and tbe other facts and circumstances leave no room to doubt that defendant waived and intended to waive any such objection, and that it was finally interposed as a technical, rather than a real, obstacle to this recovery.

Tbe interest of tbe owners of tbe property and the interest of S. D. Wood, who was a mortgagee, were insured with tbe addition “ as interest may appear.” Tbe defendant thereby undertook and agreed to insure any insurable interest those parties bad. That was tbe language of the policies. Tbe defendant took tbe premium knowing or having reason to know that these parties bad some insurable interest in tbe property covered by tbe policy, and it would now be dishonest to allow tbe defendant to object that it did not know tbe nature and character of such interest, in order to avoid liability. {Bidwell v. Wo. West. Ins. Go., 24 N. Y„ 302.)

The plaintiff was allowed to amend his complaint so as to recover the whole amount insured by the four policies. In fact all of those policies were by their terms payable to plaintiff in case of loss. The plaintiff was, therefore, the proper person to collect the same. He may not be entitled to retain all that he collects, but that is of no importance to the defendant. Its duty is discharged when it has paid up according to its contract. The plaintiff will hold the funds collected in trust for those who may be entitled thereto, besides himself. The allowance of the amendment was in the discretion of the Court, and we do not think it erred in its exercise in this instance. It was an amendment in furtherance of justice and did not change the cause of action.”