
    SENTINEL FIRE INSURANCE CO. of SPRINGFIELD, MASS., v. BOONE et al.
    No. 21345.
    Opinion Filed Dec. 13, 1932.
    Rehearing Denied June 27, 1933.
    Rittenhouse, Lee, Webster & Rifttenhouse, for plaintiff in error.
    Wim. G-. Davisson and’ Marvin Shilling, for defendants! in error.
   IíORNEGAY, J.

This is a proceeding in error to review the action of the district court of Carter county in refusing a new trial and entering judgment against thei plaintiff in error, the Sentinel Eire Insurance Company, on a policy of insurance that it had issued to C. P. Massey upon a new Durant coupe, actual cost $735 as. recited in the policy, the amount of ithe insurance being $490. This policy was issued on the 27th day of October, 1928.

In the policy it was stated that the automobile was purchased on a deferred payment plan, and the amount unpaid was $505.32, represented by 12 notes of $47.11 each, last not© being due the 1st of November-, 1929. There was a clause in the policy that the loss was payable to C. P. Massey or to Boone Motor Company, as the interest might appear. At the time of executing this insurance policy, the property was 'mortgaged by the owner to the Means Motor Company, who about this time assigned the mortgage, and the notes securing it, to' the plaintiff, J. B. Boone, and he was the holder of the mortgage at the time of the fire, about which there is some difference ,of view as to whether it was on the 27th or 29th of December, 1928. What was left of the car after it was burned wa.s assigned, with consent of the adjuster, by O. P. Massey fa» the Means Motor Company. The assignment recites that the lien of $565.32 existed in favor of J. B. Boone. Ardmore, as of the date of the 6th of November, 1928. This assignment was sworn to on the 25th, of January, 1929, by Massey.

There was no question as to’the fire having destroyed the machine, and the petition was based upon the usual allegations of a policy having been issued, with a loss payable clause alleged to be in favor of the plaintiff, J. B. Boone, doing business as the Boone Motor Company.

The answer was a general denial and a plea that proof of the loss, signed and sworn to by Massey, was not furnished within 60 days', and for that reason plaintiff could not recover. There was a further statement that the only interest which the plaintiff, as the Boon© Motor Company, had, was that of an assignee of any amount not exceeding the face value of the policy for which the defendant might he liable. There was an Amendment to the answer, setting up the fact that the loss, instead of occurring on the 29th of December, 1928, occurred on the 27th of December, 1928, and limitation barred the action.

A reply was filed setting up the fact that proof of loss was sent in, in accordance with the practice and custom that, had been theretofore had between the panties with reference to former losses over a long- period of time, and that the proof of loss was actually mailed to the agent designated for such purposes. There was a plea of es-toppel and waiver based on tbe allegation that, immediately after tbe fire, tbe adjusters of tbe defendant were sent to tbe plaintiff for tbe purpose of adjusting tbe loss, and tbe value of tbe car at tbe time of tbe fire was agreed on, and tbe amount of insurance that should be paid thereby, namely, $480, but that the adjusters did not desire to pay until after tbe expiration of a year from tbe date of the fire, and that by virtue of tbe request of the adjusters, the plaintiff was misled and thereby prevented from taking any other course for tbe collection of tbe insurance, and it was alleged that by virtue of such conduct tbe defendant ought to be estopped from setting up improper proof of loss. There was a further allegation that tbe defendant took charge of tbe wreckage and sold it to a man by tbe name of Means, at Wilson, and thereby elected to assume tbe responsibility for tbe loss.

At the trial, proof was made of the ownership of tbe original mortgage, and its assignment to the plaintiff, who claimed to be doing business as an individual under tbe style of tbe Boone Motor Company, and it appeared that the mortgage and notes were assigned to him, and the wreck was assigned to Means by Massey, Means being a witness on tbe trial. Proof was made as to tbe value of the car at tbe time of tbe burning, as. well as of tbe agreement of tbe adjusters to pay tbe full face of tbe policy. Proof was made of having forwarded a formal statement of loss to the company’s representative within 60 days, pursuant to request so to do, after the agreement to pay the $490, and it appears that the defendant bad at tbe trial a letter that was received by it in January, 1929, telling of tbe fire and tbe loss.

At the conclusion of tbe evidence, demurrer to tbe evidence was interposed by tbe defendant below, and overruled, and exceptions were taken. Tbe only evidence offered by tbe defendant was that of tbe attorneys for tbe plaintiff, as to tbe authority to use the¡ name of the original owner of tbe property as a party plaintiff. With that the defendant rested, and asked the court to direct a verdict because tbe suit was not authorized, by Massey. This was overruled and exceptions taken. Another assigned ground for direction was the reason stated in the demurrer to tbe evidence, and that .1. B. Boone, doing business as tbe Boone Motor Company, cannot maintain the action for tbe reason that Massey was not in court, and no one bad any authority to bring suit.in bis name. An instructed verdict, after consultation with tbe attorneys and a statement of what they thought ought 'to go to tbe jury, was given by tbe court for recovery of tbe amount .of the policy, $490.

A brief has been filed by the plaintiff' in error, setting out a large part of the testimony, with several assignments ' of error, but tbe only assignment of error argued is No. 4, to tbe effect that tbe court erred in overruling the demurrer of tbe plaintiff in error to tbe evidence introduced on behálf of tbe defendants in error. Point is made that Massey was a necessary party to complete tbe termination of tbe action, and that be did not consent to being made a party plaintiff, and was not made a defendant. From this record, itj appears that Massey bad mortgaged tbe property, and that the mortgagee was bringing suit under the clause in the policy requiring payment ■ as the interest might appear. It was evidently in contemplation of. the parties, at the time of the issuance of the policy, that the paper would be taken up by the plaintiff below, which appears to have been done, according lo tbe recital in the title transfer executed on the 6th of November, 1928. It further appears that tbe mortgage was held by the plaintiff at the time of tbe fire.

Some point is made as to the failure of proof as to tbe value of tbe car at the time of the fire. As there was evidence of tbe agreement to pay the full face of tbe policy, and there was positive evidence of value being beyond that, we think that tbe evidence was sufficient, when uncontradicted as it was in this case, and viewed from the standpoint of a demurrer thereto, to show that three-fourths of tbe value of the ear equaled, if it did not exceed, tbe amount of the in-srirance.

Complaint is also¡ made of not sending in tbe proof of loss required by tbe policy, but there was evidence from which it might reasonably be inferred that such had been sent in. We think, however, that on agreeing to pay the full amount of the policy, in view of tbe fact that tbe adjuster was. on tbe ground and made his own investigation, and advised tbe insured to dispose of tbe rer mains, tbe necessity for sending in tbe proof of loss no longer existed, and that tbe objections raised are not sufficient to; warrant a reversal of this case.

As to tbe position of Massey as a party, we do not' think there is anything here, of which tbe plaintiff in error has any reason to complain, Massey had sold his interest in the wreck by direction oí the adjuster, according to the proof, before the suit was started, and the right of the mortgagee to the insurance, under the conditions here named, appears to be without any reasonable ground for question, go far as this record goes, Massey had no further interest in the controversy, though his name was used by the attorneys of the mortgagee. Had the amount of the mortgage debt in this case been less than the amount duo for the insurance, there might have been some special reason for requiring the presence of the original owner of tihe car, but as the amount of the insurance is less than the conceded amount of the mortgage, we cannot see that the insurance company could be in any wise prejudiced, whether the bringing of Massey upon the record was with or without Ms consent. Massey himself is not complaining.

Finding no reversible error, the cause is affirmed.

HESTER, C. J., and RILEY, HEFNER, OULLISON, and McNEILL, JJ., concur. SWINDALL and ANDREWS, JJ., dissent. GLARE, Y. C. J.. absent.  