German Fire Insurance v. Bullene, Moore, Emery & Co.

1. Action, When Deemed Begun. Where certain defendants seek to enforce their demands against a codefendant, as to such demands the action will be deemed commenced as of the time when their answers setting up such demands are filed. 2. Oases, Followed. The cases of McElroy v. Insurance Co., 48 Kas. 200, and Insurance Co. v. Stoffels, 48 id. 205, followed. 3. Cause oe Action, When not to be Split up. A creditor having a single cause of action for a sum of money cannot by assignment split up such cause of action, and thereby subject the debtor to a number of suits based on such assignment.

Error from Norton District Court. On November 29, 1887, Bullene, Moore, Emery & Co. commenced this action against the German Fire Insurance Company and A. C. Lappin, as defendants, to recover $910, with interest, which they claimed as assignees of a policy of insurance issued by the insurance company to the defendant A. C. Lappin. A policy for $2,000 on a stock of goods in Lenora, Norton county, Kansas, was issued by the defendant company to Mrs. A. C. Lappin, on the 2d day of December, 1886. Most of the property insured was destroyed by fire on the 31st day of May, 1887. The petition alleges that, on May 31, 1887, Mrs. Lappin was indebted to plaintiffs in the •sum of $910, for goods sold and delivered to her, and that, to pay said indebtedness, she, with the written consent of said insurance company, orally assigned her right in said policy, to the amount of $910, to plaintiffs. On the insurance policy appears the following indorsement: “The following entry this day made on policy No. 119 of the German Fire Insurance Company, of Peoria, Ill., at Lenora, Kas., agency, and has been copied in register, viz.: It is hereby agreed, that after adjustment of loss the insurance shall be paid to the following creditors: Exchange Bank, Lenora, first preferred creditors, $300; Bullene, Moore, Emery & Co., second preferred, $910; Pratt & Kelly, third preferred, $333; Turner & Jay, $277; Barton Bros., $180; subject, however, to all of the terms and conditions of this policy. Dated this 31st day of May, 1887. — J. E. Crum, Agent.” On the day when this suit was commenced, separate suits were also instituted by two of the other parties named in this indorsement, in the same court, and ianother like suit was commenced by another party on the next day, making four separate]suits in the same court, on the same policy of insurance, pending at the same time. A demurrer was filed to the petition, and sustained by the court. On May 10, 1888, an amended petition was filed, making Barton Bros., Turner & Jay, the Exchauge Bank of Lenora and Pratt & Kelly also defendants, and asking that the respective interests of all parties in the policy be determined. Thereupon, on August 6, 1888, Barton Bros., Turner & Jay and the Exchange Bank of Lenora each filed a cross petition, alleging substantially the sume facts as were stated in the amended petition, and asking judgment for the respective sums stated in the indorsement on the policy. The policy required proofs of loss to be made within 30 days, and also contained this provision: “It is furthermore hereby expressly provided and mutually agreed, that no suit or action against this company for the recovery of any claim by virtue of this policy shall be sustainable in any court of law or chancery, unless such suit or action shall be commenced within six months next after the loss for which such suit or action is brought shall occur; and, should any suit or action be commenced against this company after the expiration of the aforesaid six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim so attempted to be enforced, and a complete bar thereto, any statute of limitation to the contrary notwithstanding.” When this case was called for trial, a colloquy took place between the court and counsel, a part of which is stated in the record, as follows: “Ware: In the cases which now have issues made up in them, viz.: Bullene, Moore, Emery & Co. v. German Fire Insurance Company, and William F. Dolan v. State Insurance Company, the pendency of these four suits is pleaded. For that reason it is necessary for us to know whether these latter cases are in court or out of court. “Court: The answer of the insurance company in the two former cases sets up the pendency of these four other actions in bar. “Ware: Yes, sir. “Court: I dismiss them, on motion of the court, without prejudice, and give the plaintiff an exception. “ Ware: Your honor, we are entitled to judgment on the sustaining of our demurrer. We move for judgment, not dismissal. We don’t want them dismissed; we want judgment on our demurrer. “Court: Go on with this case. “Ware: The German Fire Insurance Company excepts. “Jones: The plaintiff excepts.” The case was tried by the court, and judgments rendered as follows: In favor of Bullene, Moore, Emery & Co............... $1,037 40 In favor of Barton Bros,...................... 205 20 In favor of Exchange Bank............................... 372 00 In favor of Turner & Jay................................... 315 78 Total.......................................................... $1,930 38 The defendant company brings the case to this court. 1. The first time that the Exchange Bank of Lenora, Barton Bros, and Turner & Jay appear in this case before the court is August 6, 1888, 14 mouths after the fire. They did have other suits for the same matter, but those suits were defeated. The six mouths of limitation in the policy absolutely bars them. No suit has been instituted within the time. The cross petitions that were filed by them were the beginnings of their actions, and are now the foundations of their judgments. Hence the demurrer and motion for judgment on the pleadings should have been sustained. McElroy v. Insurance Co., 48 Kas. 200; Insurance Co. v. Stoffels, 48 id. 205. 2. The answer as a defense sets up the execution of a third policy a few days before the fire. This was not denied under oath; hence stands admitted by the pleadings. By the terms of the policy sued on, such additional and concurrent insurance must have been consented to and indorsed upon the policy. The amended petition shows by its exhibits that no such consent or indorsement existed, nor does the amended petition claim that they did exist. They come in with an unverified general denial in reply. Such a reply is simply a confession. In addition to all this, the said allegation concerning other insurance was true, and proven to be true, and there was no plea in confession or avoidance, nor anything pleaded as a waiver. Hence the insurance company was entitled to a judgment on the pleadings against all parties, both plaintiff and defendant, because the facts as pleaded constituted an absolute defense to the action. Allen v. Insurance Co., 31 Am. Eep. 243; Continental Ins. Co. v. Hulmán, 34 id. 122; Landers v. Insurance Co., 40 id. 554; Somerfield v. Insurance Co., 41 id. 662; Sentelle v. Insurance Co., 16 Hun, 516. 3. The answer of the insurance company set up and alleged the nature of the business relationship between Lappin and his wife. It alleged the agency of Mrs. Lappin and the scope and character thereof. The agency was set forth as full and specific as the pleader was able to express it, and it was not denied under oath. That left it admitted in the pleadings. With that agency standing admitted as alleged, then, according to the requirements of the policy, the contract of insurance was void. It was also void for the further reason that a wife as such has in Kansas no more of an insurable interest in her husband’s property than he has in.her property; that is, neither has such insurable interest. Pelican v. Smith, 9 S, Rep. 327; Insurance Co. v. Montague, 31 Am. Rep. 326; Troll v. Woodrich, 22 Atl. Rep. 245. 4. When an insurance policy shows that all other insurance taken out upon the property, whether valid or invalid, shall share in the loss, and when from the pleadings it is shown that the plaintiff is not the entire owner of the policy, then the pleader in his petition must set forth whether or not there are other insurance policies resting on the property, because the defendant is only obliged to pay his proportion of the loss as compared with the total insurance, aud unless the petition sets forth the total insurance and all of the other policies, and shows that the plaintiff is entitled to it all, he cannot maintain the action. In the case at bar, the other policies of insurance were not set forth, but the plaintiffs proceeded to recover the individual sum due them from this one defendant company, without reference to what the other defendant companies should pay. For that reason, among several others, the petition did not, state facts sufficient. Fire Ins. Co. v. Felrath, 54 Am. Rep. 58; Coats v. Ins. Co., 30 Pac. Rep. 404. 5. Any person has a right to sue for less than his whole claim, but a judgment on such part is a judgment on the whole; but no person has a right to split his claim up into two or more fragments and bring separate and simultaneous suits. In the case, at bar, neither of the four creditors makes any allegations or asks any relief against the others, but each comes in and generously admits all the allegations-that the others make against the insurance company. For the reas >n that actions cannot be split up in such a way, and further, that suits cannot be projected and carried on in such a way, the action should have been dismissed as a whole, leaving the parties to start over again. See Thatch v. Metropole Ins. Co., 11 Ins. L. J. 199; JEtna Ins. Co. v. Railroad Co., 3 Dill. 1; Hartford Ins. Co. v. Davenport, 37 Mich. 609; Stearns v. Insuranoe Co., 124 Mass. 64; Whitaker v. Hawley, 30 Kas. 326; Mandeville v. Welch, 5 Wheat. 277. 6. As to the so-called assignment of the policy: By the terms of the policy, no assignment could take place. This clause is almost universal in policies. The so-called assignment took place the same day as the fire, but later. Courts have always held that contracts of insurance were personal. It is the cardinal principle of insurance that the obligation runs only to the person designated. It is the individual who is insured, and not the property. Policies of insurance are not transferable like bills of lading. The consent of the insurance company must be given to any transfer. See Nicker-son v. Nickerson, 12 Atl. Rep. (Me.) 880; Vette v. Insurance Co., 30 Fed. Rep. 668; Western Ins. Co. v. Helfenstein, 40 Pa. St. 290; Alkan v. Insurance Co., 53' Wis. 136; McGubbin v. City of Atchison, 12 Kas. 171; Insurance Co. v. Johnson, 47 id. 1; Insurance Co. v. Thorpe, 48 id. 239; Insurance Go. v. Vanlue, 26 N. E. Rep. 119: O’Brien v. Insurance Co., 31 id. (N. Y.) 265; Aultman v. McConnell, 34 Fed. Rep. 724. 7. As to defect of parties plaintiff and defendant: The mere putting of a person’s name in the list of defendants at the head of a petition is not the making of that party a defendant, unless some attempt is shown of getting the party into court and into the jurisdiction. Otherwise, the person is not a party to the suit any more than if the name had been omitted from the caption. Bullene, Moore, Emery & Co. are not concerned with the first point made by opposing counsel. The property insured was burned May 30, 1887; Bullene, Moore, Emery & Co. began their suit November 29, 1887, within the six months required by the cast-iron limitations of the policy. The other points of plaintiff’s brief, viz., second, third, fourth, fifth, sixth, aud seventh, are all answered by four words found in the record: “It is hereby agreed.” Those four words are quoted from the indorsement made in writing upon the policy sued on, duly signed by the agent of the insurance company. That indorsement is the real foundation of this action. That little indorsement is a valid and voluntary obligation. It specifies that the insurance company agrees to make payment to the parties therein named and in the order therein specified. It was a novation of parties by agreement. By it, Mrs. A. C. Lappin steps entirely out of consideration; the pleadings allege and the proofs show that the transfer of the policy was taken in payment of Mrs. Lap-pin’s debts; her creditors now look to the insurance company and the insurance company agrees to respond to the creditors. Even if there had been “other insurance,” even if Mrs. Lap-pin had been but the “agent” of her husband, and he the owner of the property; even if the actions are “split,” if there had been an “assignment” of the policy, all these would have been, and if they ever existed are, cured by that agreement. The insisting on proofs of loss and the supervising of them by the general agent of the insurance company, and his never intimating a forfeiture, is of itself a waiver of any and all breaches or grounds of forfeiture theretofore existing. German Ins. Go. v. Grimert, 112 III. 68; Cannon v. Home Ins. Co., 53 Wis. 585, 593, 594; Titus v. Insurance Co., 81 N. Y. 410, and eases cited; Canada L. C. Co. v. Canada Ag. Ins. Co., 17 Grant’s Ch. 418-423; Pa. Fire Ins. Co. v. Kittle, 39 Mich. 51-54; Appleton v. Insurance Co., 46 Wis. 23-33; Hollis v. State Ins. Co., 65 Iowa, 454; Marthinson v. JSf. B. & Her. Ins. Co., 31 N. W. Rep. 291; Gans v. St. P. F. & M. Ins. Co., 43 Wis. 108. Taking part in an attempt to adjust a loss and making proofs thereof, without objecting to the fact of other insurance, is a waiver. Collins v. Farmville Ins. Co., 79 N. C. 279; Pa. Fire Ins. Co. v. Kittle, 39 Mich. 51-54; McCabe v. Dutchess Có. Ins. Co., 14 Hun, 599; Cannon v. Home Ins. Co., 53 Wis. 585. Had there been but a simple oral transfer of this policy, it would have been valid. Boelca v. Nuella, 28 Mo. 180; St. John v. Insurance Go., 13 N. Y. 31-39; Chapman v. Mcllwrath, 77 Mo. 38. There was no defect or lack or .absence of necessary parties in this case, as it appears to us. It seems to us clear that Bullene, Moore, Emery & Co. alone had an absolute right to sue the insurance company on the policy, and this because of the agreement of novation previously discussed. If they had the right to sue alone, no complaint can be uttered by the insurance company because Bullene, Moore, Emery & Co. have not joined herein various outsiders. We claim that permission to take out other insurance is granted by the terms of the “three-fourths” clause attached as provided in the body of the policy. Plaintiff in error has waived any right it may have had under claim of other insurance by actually making proof of loss complete on its own form of blank, and attempting to adjust the loss without objecting to, or intimating a forfeiture by the fact of, other insurance. Collins v. Farmville Ins. Co., 79 N. C. 279; Gannon v. Home Ins. Co., 53 Wis. 586, 594; Pa. Fire Ins. Co. v. Kittle, 39 Mich. 51-54; McCabe v. Dutchess Co. Ins. Co., 14 Hun, 599; Titus v. Insurance Co., 81 N.Y. 410. Eecovery on a policy cannot be defeated on the ground that there was additional insurance, when the same was effected with the knowledge of the company’s agent. Notice to agent is notice to principal. Cobb v. Ins. Co. of N. A., 11 Has. 94; Vide v. Germania Ins. Co., 26 Iowa, 9; Walsh v. AEtna Ins. Co., 30 id. 133; Ins. Co. of N. A. v. McDowell, 50 111. 120; Daniels v. Wilson, 27 Wis. 493; Patten v. Mut. Fire Ins. Co., 40 N. H. 375. See, also, Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430; Allen v. Fire Ins. Co., 12 Vt. 366. “No particular form is necessary to constitute an assignment. Any writing that directs the payment of a certain sum to holder operates as an assignment, and to that extent as an order upon the insurers.” 2 Wood, Fire Ins., § 364; Hall v. Dorchester Mut. Ins. Co., Ill Mass. 53; Norwood v. Guerdon, 60 111. 253. It has been held that the failure on part of the insurer to object to the unseasonableness of proof of loss after the forfeiture has attached is a waiver. Hibernia Ins. Co. v. O’Conner, 29 Mich. 241. In this case, with the knowledge and consent of the company, Mrs. Lappin transferred her interest in the policy to certain different creditors of her own, specifying the exact interest going to each one, and a certain order in which they were to be paid. The relief sought by defendants in error is several. Here is an■ agreement, superintended and written by recording agent of company, to split up actions on this policy. The right to do this by contract cannot be questioned; this doctrine is surely established. Paris v. High-tower, 76 Ga. 631; Beck v. Denerveaux, 9 Neb. 109. Regarding the so-called assignment, or “ novation: ” Counsel seek to correct every defect in the case by an act of the agent, done without authority, never reported, never approved, and for which no authority to act was proved on the trial. The agent, in attempting to exercise an authority which he did not have, put in, at the end of the writing, a clause that knocked out of it all that is claimed. It was this: “Subject to all the terms and conditions of the policy.” That was enough. The policy, by its very terms herein quoted, gave the agent no such power. The agent had no such power. No such power was proved. He never reported the act to the company; so that the company never ratified it. The company never received any consideration for the act, and never released Bullene, Moore, Emery & Co. from any duties under the policy. After the fire no agent has a right to waive anything that would affect the loss or the company’s liability thereon, unless he be an agent who would have the right to adjust or pay the loss. Enudson v. Insurance Co., 43 N. W. Eep. 954; Hankins v. Insurance Co., 35 id. 34; Barre v. Insurance Co., 41 id. 373; Cleaver v. Insurance Co., 39 id. 571; Smith v. Insurance Co., 15 Atl. Eep. 353. • There is no “novation” in this case. The use of the term is incorrect. A local agent, in a case like this, has no power to waive conditions of the policy. See Ostrander, Fire Ins., p. 94, and cases cited.