Loring v. Dutchess Ins. Co. , 1 Cal. App. 186 ( 1905 )

Action upon a policy of insurance. Defendant demurred to the second amended complaint on the grounds: 1. That it did not state facts sufficient to constitute a cause of action; 2. That there was a misjoinder of parties plaintiff; and 3. That the complaint was ambiguous in various particulars, among which was, that it could not be ascertained therefrom what were the interests of plaintiffs in the property insured. The demurrer was sustained, and upon plaintiffs' refusal to amend, judgment was entered for defendant. This appeal is from the judgment.

The facts stated in the second amended complaint, so far as material, are: That plaintiff Bunch, having paid the consideration price for certain premises upon which the insured buildings were situated, caused legal title to be taken in his co-plaintiff Loring as security for a loan of five hundred dollars and interest. Thereafter Bunch made application (a copy of which application appears in the complaint) to the agent of the defendant company for a policy of insurance to the amount of eight hundred dollars upon such buildings, and in such application made known the state of title and the relation of the parties thereto, and directed the policy to be written in Loring's name, with the loss, if any, payable to Bunch as his interest may appear; all of which was done, Bunch paying to defendant the premium. In the policy, as appears by the copy made a part of the complaint, it was stipulated that it should be void if the interest of the insured should be other than unconditional and sole ownership. Loss, due proof thereof, and interests of plaintiff were averred.

It is insisted by defendant, in support of its general demurrer, that the actual condition of title as averred, when taken in connection with the averment that Bunch was the sole owner in fee of the property destroyed, precludes recovery. With this contention we do not agree. The issue of a policy upon known facts waives all conditions inconsistent therewith. (Sharp v. Scottish Union etc. Ins. Co., 136 Cal. 542, [69 P. 253, 615]; Allen v. Home Ins. Co., 133 Cal. 29, [65 P. 138].) Plaintiffs each had an insurable interest in the property. (Civ. Code, sec. 2546; Davis v. Phoenix Ins. Co., 111 Cal. 414, [43 P. 1115].) The defendant, having been apprised of the fact that Loring's interest was small, and upon such information issuing a policy for eight hundred dollars and accepting a premium based on that amount, with a proviso that the loss should be payable to Bunch, can only lead to the conclusion that the interests of Bunch and Loring were both insured, and the policy ran to both. To construe the contract as insuring only Loring, would be to say that Bunch was paying a premium and the company accepting the same upon an amount which, in the very nature of things, was far in excess of possible loss. It follows that plaintiffs, both being beneficiaries, could join in the action. Even in cases where part is payable to the assured and part to others, all of the beneficiaries may unite as plaintiffs in the action. (WestCoast Lumber Co. v. State etc. Co., 98 Cal. 513, [33 P. 258].)

The complaint was neither ambiguous nor uncertain in its allegation with reference to Loring's interest. It avers that in the proof of loss this interest was disclosed. From this it appears that defendant was advised, therefore, of the respective interests. "Faults consisting in ambiguities and uncertainties should be viewed, to a certain extent, in the light of the situation of the parties as to their knowledge of the facts." (Schaake v. Eagle etc. Can Co., 135 Cal. 485, [63 P. 1025, 67 P. 759].) And the rule is proper in cases where it affirmatively appears that the facts are equally in possession of both parties.

We do not regard the complaint as ambiguous or uncertain in any of the other respects claimed. Enough appears in the complaint to render it easy of comprehension and free from reasonable doubt. (Salmon v. Wilson, 41 Cal. 602.)

Judgment is reversed, with directions to the court below to overrule the demurrer to the second amended complaint.

Gray, P. J., and Smith, J., concurred.