Franklin v. National Insurance

Wagner, Judge,

delivered tbe opinion of tbe court.

This action was brought to recover on a policy of insurance issued by tbe appellant to one John Franklin, insuring him against loss or damage by fire on certain property. Tbe loss, if any, by tbe terms of tbe policy was made payable to P. H. French. Tbe policy was issued January 12,1867, and was to continue in force three months. On tbe 21st of January, 1867, tbe property insured was destroyed by fire, and tbe contract at that time remained unchanged by assignment or otherwise. In tbe subsequent month of February tbe policy was assigned by French to tbe Union Savings Association, a banking corporation, and by tbe said corporation afterward assigned to the respondent. At tbe return term tbe appellant appeared and filed its answer setting up various causes of defense, and a replication was filed in due time. Application was then made for leave to withdraw tbe answer and demur to the petition, and a written stipulation was entered into and signed by tbe respective attorneys for both parties, whereby it was agreed that tbe appellant might withdraw its answer and interpose a demurrer to the petition; and should it be overruled, then tbe appellant was to allow final judgment to be entered thereon, retaining tbe right to appeal. Tbe grounds assigned for demurrer were that plaintiff derived bis right to sue by assignment from French; that tbe loss, if any, was made payable to French; that French bad no interest, legal or equitable, in tbe property insured, either as owner or agent.

Tbe demurrer was by tbe court overruled, and final judgment rendered thereon. Tbe appellant afterward moved tbe court for leave to withdraw its stipulation and also its demurrer, and also for permission to answer. Tbe reason assigned was that newly-discovered evidence bad been found which would support tbe defense. Affidavits were filed to corroborate this statement. Tbe motion was overruled, and exceptions were duly taken.

It is expressly admitted in this court that tbe written stipulation *495 between the attorneys was fully authorized, and was such an agreement as they had a right to make in the conduct of the suit. The appellant’s attorneys were fully advised of all the facts when they went into it. They had fully answered, setting up whatever defense they had, and were given' ample opportunity to establish it; but, instead of going into the trial when both parties were ready, they supposed that they had discovered a fatal defect in the petition, and they chose to place exclusive reliance on it. They risked their own judgment on it, and if they were mistaken they ought to be held to the consequences. It was a solemn agreement, binding on both parties; and I cannot see on what grounds, either moral or legal, it should be violated because it turned out contrary to the party’s expectations. There is no pretense that it was obtained by fraud, misrepresentation, or circumvention, but, on the contrary, it was purely voluntary, open, and fair. The court had a discretion as to whether it would allow- the answer to be withdrawn and the demurrer filed after the issues were made up, and it might have been induced to its course of action by the stipulation. A party cannot be allowed to make an express' agreement and avail himself of its advantages if it resulted in his favor, but not be bound by it if it happens to prove disadvantageous.

As to the newly-discovered evidence, there is nothing in it which would justify a court in granting a new trial after verdict, where a regular trial had been had and the party was in a situation to avail himself of such a right.

The only issue raised by the demurrer was that French, to whom the loss, if any, was made payable, had Co insurable interest in the property, and therefore the policy as to him was void. It is true that the contract of insurance is a contract of indemnity, and to entitle a party to recover for a loss he must generally have an interest in the premises or the property destroyed. But every fact and declaration must be considered as the result of design or agreement, and the interest of the parties should have effect if it can be done consistently with established rules. (Calvert v. Bradley, 16 How. 598 .) Now, if we apply this principle, what are vte to suppose the company meant by issuing the policy *496 with the indorsement that the loss, if any, should he paid to P. IT. French? It was an admission by it that he had an interest in the contract and was to receive the benefit of it. The policy was at its inception assigned to him, with the assent of the company. (Bidwell et al. v. St. Louis Floating Dock and Insurance Co., 40 Mo. 42 ; Brown v. Roger Williams Insurance Co., 5 R. I. 394; National Fire Insurance Co. v. Crane, 16 Md. 260 .)

I think the judgment of the court below was right and should he affirmed..

The other judges concur.