Clark v. German Insurance

BOND, J.

The plaintiff was insured by the defendant in the sum of $1,000 on a dwelling house and $500 on personal property contained therein. Being indebted to the bank in the sum of $1,500 upon which J. S. Taylor, was indorser, plaintiff conveyed by warranty deed the dwelling house and assigned said policy, with the assent of the company, to said Taylor to secure such indebtedness, and protect him as indorser. Thereafter a fire destroyed, the dwelling house, and with trifling exceptions, all the personal property. An adjuster of the company paid the assignee of the policy $950, and took a receipt therefor in satisfaction of the loss under the policy, and also took a surrender of the policy. This action is by the assured, the assignor of the policy, and is. brought to recover $500, the amount of insurance apportioned in the policy to the personal property destroyed in said fire.

The defense is payment to the assignee. The court, to *247whom the cause was submitted without a jury, overruled defendant’s demurrer to.the evidence, and gave judgment for plaintiff, from which defendant appeals, and assigns this ruling of the trial court as erron

An examination of the testimony leaves no doubt that the assignment of the policy of insurance was intended only as a collateral security for the indebtedness of the plaintiff to the bank, upon which the assignee was indorser. Such a transaction is provided for by the following clause of the policy itself, to wit:

“XX. If this policy is made payable in case of loss to a third party, or is held- as a collateral security or any claim for loss shall have been assigned after loss by fire under this policy, the proofs of loss shall be made by the party originally insured, and shall set out fully the interest of the party to whom the loss is payable, and when required, the party to whom the loss is payable, shall make proofs on oath of the character and extent of such interest in detail.”

In accordance with the foregoing provision proofs of loss were made by the assured and his assignee as to the dwelling house, and by the assured alone as to the personal property, in which latter statement it is recited that the goods destroyed were the property of the assured. The evidence tends to show, that upon the visit of the adjuster or special agent of the company to the scene of the loss, the assignee only claimed $1,000, which was the portion of the policy which covered the real estate conveyed to him, and the assured claimed $500, being that portion of the policy which covered the personal effects. The evidence further tended to show that the money paid the assignee was received solely in compromise and adjustment of the $1,000 claimed by him under the assignment, and .that the assured neither knew of nor consented to the receipt executed by the assignee for the total loss under the policy, nor the surren*248der of the same. The evidence showed conclusively that the indebtedness of the assured to jthe bank was credited with the $950 paid by the defendant to the assignee of the policy, and that after the sale by the latter of the lot of ground upon which the house was formerly situated, enough of the proceeds of such sale was applied to the assured’s indebtedness to extinguish and pay off the same in full, leaving a .considerable surplus, which was turned over to him by said assignee of the policy.

Erom these and other circumstances in the record it is reasonably inferable that the defendant,' through its agent, was fully apprised of the exact extent of the interest of the assured and his assignee in the policy in question. It could not denude itself of this knowledge or information in its transaction with Taylor, the assignee; and the adjustment effected with him' was intended and received only in payment of his claim for $1,000 apportioned in the policy as the insurance upon the dwelling house. If this deduction was made by the trier of the facts, it is clear that such payment did not in anywise discharge the claim of the assured for the $500 of insurance covering the personal property, the ownership of the assured and his assignee as to these respective amounts being separate and distinct according to the fair effect of the testimony in, this record. It follows that the payment or satisfaction of one did not in law preclude the other from the assertion of his separate demand. There was sufficient inferential evidence to support the finding of the trial court, hence there was no error in its refusal of the declaration of law requested by defendant, and the judgment herein is affirmed.

Judge Bland, concurs; Judge Biggs, absent.