. FEDERAL REPORTER.
l03U. $. 11; Edwards v. Oonnedicut Hut. Ins. Co., 20 Fed. Rep. 452; Oongarv. Galena & a. R. 00.,17 Wis. 477; Upper M1,8sissippi Tra.n¥J.Oo. v. Whittaker,. 16 Wis. 220.. '.' · . Thede,murrer will be stricken out, and the defendant given 2.odaY\!l' . time .,to.answer the conwla,int, upon condition of waiving service of no. tice(>f trial, or accepting short notice of trial, for the term of court to open on the first Monday. in June.
FRIEZEN 'II. ALLEMANIA FIRE
D. WiBconsin. 1887.)
INsuRANClIl-FmE-AoTrON ON POLIOY....;.Sn:: MONTHS' LnrrrATION-hOl[ WIlAT DATE REOKONED. '. . .
.A policy of fire insurance. provided that an action to recover upon the policy fot a loss should be commenced within six months after the fire occurred, and also,that arbitrators should be aPfointed to ascertain the amount of loss, be prougllt unti they had made. an award, and nothing should be due and payable under the policy until 60 days after the completion of allthe requirements of the policy. Held, these provisions should be construed together, and the six-months limitation be.reckoned, not from the occurrence of .the fire, but from the expiration of the 60 days, when the loss was due and payable.. Under any other construction the insured's right of action might be barred before ithad accrued. ..
SAME-:.INTEREST-ALIENATION-"SALlll, TRANSFER, OR OONVEYANOE"-MoRT' GAGE... .' ....
.T he pOlicy also provided that "the interest of the insured is the entire, unconditional, and sole· ownership of the property, 'and that the poJlcy shall become void by the sale or transfer, or any change in title or possession, of the, propel!ty, insured. whether by legal process or judicial decree, or voluntary transfer or conveyance," etc. At the time the policy was issued there was an outstanding mortgage on the property, and the insured, after receiving the policy, 'executed another mortgage upon it. Held, neither of these voluntary 8ale, transfer, or convellance of the property within mortgages the meaning of the policy, nor did either have the effect to vitiate the policy; especiall'''as'the insured was asked no questions as to any outstanding mort· gage, and made no agreement as to future ones. '
At Law. . H. W.· dhynoweth, for plaintiff. Stevem & MorriJJ, for defendant.
BUNN, J. This is an action brought to recovera Joss under a. policy of insurance against fire issued by the defendant company to one C. Friezen, and afterwards duly assigned to the plaintiff. A jury was waived by the parties in writing, and the case tried before the court. The facts are stipulated, and are as follows: . The insurance company have had an agElnt in Wisconsin, located at Milwaukee, since 1880. The policy was duly issued by the defendant company on April 8, 1885, by which they insured the said C. Friezen against loss by fire upon his twostory frame hotel building and addition, situate in Glyndon, Minnesota, and the furniture therein, in the sum of$1,200. Eight hundred dollars of
FIUEZEN f1. ALLEMANIA FIRE INS. CO.
this was upon the building, and four bundred upon the furniture therein, beds, bed!lipg, etc. On June 23, 1885, the building and furniture insured werea<#dkntally and by'misfortune totally destroyed by fire. TIle upon the happening of the, fire, gave notice thereof to, the company, ,and as soon as possible, ,to-wit, on thirty-first July, made'and rendered' to the defendant proofs, of the loss, amounting , tp&l,098.'30:.' The plaintiff, 'upon a.ssignment of the policy and cause of action to her, demanded payment, but the company declined to pay. On the tepth' of September, 1885, the defendant company, through its agent at Chicago, demanded of the insured that he submit to an examination under oath touching the loss, and insisted that the company had the right to have such examination take place at their office at Pittsburgh, Pennsylvahia,'but offered toaHow the insured to'be examined at their ill Chicago. The to examination at his home in ,Glyndon, or at' any poi,nt in Minnesota .at a reasonable, dist.tlnce frOID -his home. They could not agree place for examination, and aftel'$atds, in February, there was some move to arbitrate the qnestion; the insured offering and demanding that it be arbitrated, and setting a qay for such purpose, alfd notifying the defendant company. But no arbitration or examiriation was ever had. There was a chattel mort$1,100 executed by the assured on :M;arch 18, 1885, upon the furniture of the hotel, and which was still. subsisting at the time the policy was issued; and after the issuance of the policy, on June 17, 1885, Friezen executed a second mortgage upon a portion of the property, towit, the p'd()l.table and some other articles of saloon furniture, to secure the sUlD·of &.115. ,There was delivery or change of possession of the property undeJ1 either mortgage, and nothing to sho.w when either pf them was to become due. The defendant makes three defenses to the action: (1) That the court has no jurisdiction of the subject-matter of the action, or of the defendant corporation; (2) that the action is barred by the six-months limitation provided for in the policy for bringing the action; (3) that the plaintiffi;;; l>ll.rredfrom recovering on account of the two mortgages upon the personal property on which $400 of the insurance was placed. This case was before the court on a former occasion upon demurrer, when the same questions as to jurisdiction of the court were relied upon and decided, and it was then held that, as the action was transitory in i4J hature, it was not necessary to bring suit in Minnesota, where the p:ropertywas situate; and that, as the summons was served upon the company's agent in Wisconsin, and the company, by its attorneys, had put in a general appearance in the action, and taken steps to remove the ease into this court, that the court had acquired jurisdiction of the case and of the person of the defendant. I see no reason for changing the ruling then made. See ante, 349. Bearing upon the other defenses above named, are the following provisions in, the printed portions of the policy: "(1) The,8Bsured hereby covenants and agrees that any application, plan, or description referred in this policy is true, and. shall be and .form v.30F.no.5-23
part of this policy, and a warrall,ty by ,the assured that no fact material to the risk, or relating to its condition, situation, or occupancy, has been concealed and that the interest of the assured therein has been truly nor stated to this' company; it being understood, unless otherwise expressed in this policy, that the interest of the assured is. the entire. unconditional, and sole ownership of the property, and' that all bUildings intended to be insured by this policy stand on ground owned in fee-simple by the asl;lUred. "This :policy shall beco\D8 void and of no effect by the sale or transfer. or any change in title Or possession, of the property insured, whether by legal process or judicial decree, or.voluritary transfer or conveyance. "The amount of sound value and of the loss or damage shall be determined by agreement between the cOrriptmy and the assured; but if at any time differences shall arise as to the amount of any loss or damage, or as to any question, matter, ,or thing, (except the, validity of the contract, or the liability of the company.) concel'lling or arising out of this insurance, every such differrequest of either party, be submitted, at equal expense of the . t? competent and impartial persons, one to be chosen by each party, arid tM two so chosen shall select an umpire to act With them in case of their disagreement; and, until such an appraisement is held, the loss' shall not be payable, and the award in writing of any two of them shall be binding and conclusive as to the amol.\ntof such loss or damage, or as to any question, matter, or thing so l;lubmitted., . "The assu:rCild shall, whenever required, submit to examinations under oath by any person appointed by this company, and subscribe to such examination when reduced to writing, and shall also, as often as required, produce their books of account and other vouchers, or certified copies thereof, and exhibit the same tor examination at the office of this company, in tbe city of Pittsburgh, and permit extracts and copies thereof to be made. " As soon after the fire as possible; proofs of loss, being iJoparticular statement of the loss, Shall be rendered to the company, signed and SWOl'll to by the assured, stating such knowledge or information as the assured has been able to obtain as to the origin and circumstances of the fire, and also stating covering any of the property, and the copy the title, and all other of the writteri 'parts of all policies, and the occupation of the entire premises. The assured Shall also fUl'llish 'such .fQrther particulars. and such certificates of a magistrate or officer l,lharged with the duty of investigltting fires, as may be reqQired. And if loss or damage be claimed upon buildings, fixtures, or machinery. the assured shall, if reqUired, furnish plans and specifications thereof, which shall form a partbfthe particular statement or proof of loss. The claim shall not be due a'ndpayable until sixty days after the full completion of alIthe requirements herein contained. "It is furthermore hereby expressly provided and mutually agreed that no suit"or action against this cQmpany:fQr.the recovery Of any claim by virtue of this policyshaU be sustainable in any court of law or chancery after an award shall have been obtained fixing the amount of sMb in the manner therein provided, and afterptoofs of loss have been irlmdered in due form to the company, nor unless such suit or action shall becoIl1menced within six months next after the fire' has occurred. II 1. Is the action barred by the six-months limitation in the policy? The loss-occurred on June 23, 1885.' Proofs ofloss were made and rendered to the July 31, 1885. By the provisions of the policy the loss was not paya.ble Ulltil 60' days 'after protlfofloss, or until September 30, 1885. The summMs was served on February 24, 1886, and a general appearance in the action made by,theconipany on March 2d following, so that, if the limitation cOIumenced to run from
the <!ay,dfthe'fire, the ii.cti6n is-barred. If frOm when'the action mighl-havebeen commeneed, which was 60 days after proofs ofloss, or September 30th, then the action was brought in time. It is eVident aUteral construetion of the six-months clause, standing ,apart from the other provisions of the policy, would bar the action. But I am of opinion that all the -provisions should be oonsidered together; and, if possible, such a reasonable construction given them as will give proper effect to each part, because it should not be considered that it was in the contemplation of the parties that anyone of these several proshall be visions should be iMperative. Now, if a literal :given to the six-months clause, what will be the effect? Here are various provisions bearing materially on the question oftime,-that allowingexamination under oath, and the production of books and vouchers, and more especially the provisions respecting arbitrators, and the one giving 60 days in which to pay after all these things have taken place, and _the amount of loss fixed by an award. An arbitration is like a lawsuit in this, at least, .that it takes time. Arbitrators must be agreed the facts, upon who will take upon themselves the duties of and making a just award; witnesses must be had; adjournments and continuances must have been contemplated,-for these are among the usual incidents to an arbitration. So that it is easy to see, considering what the parties must have had in view, without fault on the part of either, and using;all the diligence in their power, four months might very well be taken in arbitrating the question of loss and all the other questions between them before a final award could be reached. Then no action would lie-until 60 days more had elapsed, when the 6 months from the time of the fire would begone, and the assured's right of action gone with it, if a literal construction is to be given to this provision. Would not such a construction pefeat the provision itself, because a reasonable time must be given for the assured to assert his right? It is not in the power of the parties to give a right of action in case of a loss, and at the same time provide that there shall be no reasonable time in which to assert it. lt will be seen that. under such a construction, four months is the utmost time the assured would have in which to bring his action, allowing that no time at all were taken for making proofs of loss, for examination under oath, and for arbitration. This would seem like a rather short time, and, if it were yet an open question, it might be well to consider how far the limitation provided by law, which in this case would be six years, may be shortened and shrunk by the greed of one or other of the contracting parties. But the law is settled that it is competent for the parties to agree upon a time shorter than that allowed by law, provided some reasonable time is given in which the party may assert his right.in court. In Riddlesbarge:r v. Harif(Yfdlri8.Co., 7 Wall. 386, the limitation was 12 months, and the court sustained it. In McFarland v. Peabody Ins. Co., 6 W.' Va. 427, the provision was 6 months, and the money due 90 days after'proof of loss made. The company offered to prove that
the suit was begun (as the fact was) :more than 6 months after the 90 expired, when the debt became due. The court held the provision binding. There are many other cases where a twelve-months and six-months limitation have been sustained ; but in all cases I have been able to find, excepting two, where the question has 'been raised, the six months or twelve months have been held to ,run from the time the cause of action accrues, and not from the time of th:e loss. Such a oonstruction seems to be unavoidable in order to give, the assured any reasonable time after the debt become,s ,due in which to bring his action. The company having secured itself against action brought for 60 days after the amount' of .loss is fixed. by arbitration, it could hardly have been within the contemplation of the parties that this same 60 days, should constitute a part of the during which the remedy is six months which the assured, is to have in which to bring his action. Indeed, is no legal liability until the 60 days have expired, and certainly there could be no great propriety in providing for a time for bdnging the action which should cover a period when there was no legal liability on the part of the company to be sued. It .would be something more than absurd to give the insured six months in which to bring action, and at the same time provide that a large part or the whole of the time ao given should be taken up by a period when there is no legal liability:, and, no action can be brought. It would savor too much of cutting oft', the remedy entirely. Such a construction would make the different provisions as to time wholly inconsistent with one another. It is, I think; more ,rational to say,considering these provisions as to time altogether, that what the parties contemplated was that, after the loss became due and payable, the ,assured should have six months within any part of which time be might bring his suit. Such a construction preserves the rights and remedies of the parties, and does justice tc both.; while the other construction might in many cases, without any fault on the part of the assured" cut oft' his remedy by, giving him ne. time, or an unreasonably short one, in which to assert it, which the law would not allow, as being against public policy. The language of these provisions is that of the company; and, if there is any uncertainty about the meaning, it should, be Gonstrued most strongly against the party using it, and in favor of the assured as he might be reasonably presumed to have understood it. See the following leading cases, where the same construction has been placed upon similar provisions: Barber v. Fire & Marine In8. 00'. of Wheeling, 16 W. Va. 658; Chandler v. St. paUl Fire & Marine Ina. Co., 21 Minn. 85; Steen v. Niagara Fire 1m. Co., 89 Y. 315; Spare v. Home Mut. Ins. Co.,:17 Fed. Rep. 568; Hay v. Star Fire Ina. Co., 77 N,. Y. 235; Mayor of New York v. Hamilton Fire In8. Co., 39 N. Y. 45; Ellis v. Council Blttff8 Ina. Co. ,64 Iowa, 507, 20 N. W., Rep. 7-82; Longhur8ty. Star Ina. Co., 19 Iowa, 364; HennW!ey v. Manhattan Firein8. Co., 28 Hun, 98. We have been referred by defendant's counsel to a manuscript opinion by Judge McALLISTER in the appellate court for the First Illinois dis-
FRIEZEN tI. ALLEMANIA FIRE INS. CO.
trict, in the case of A7Zernania Ins. Co. v. Litfle, in an action upon a pot. icy like the one in suit, and issued by the same company, where a different ruling was had, though this precise question does not seem to have been presented. In that case the fire occurred on August 23d. The action 'was begun February 24th following,six months and one day after the fire. The trial court was asked by the defendant company to instrnct the jury that if they believed from the evidence that the property was destroyed bY'fire, and that such fire occurred on the twentythird day of August, and that suit was not commenced until the twentyfourth of February, then the plaintiff could not l'ecover. This instruction thecoun refused to give as asked, but modified it, by telling the jury th4l.t what the facts were as to when the fire occurred, and when the property was destroyed, must be determined by the jury by a consideration of all .the evidence in the case. A verdict being found for the plaintiffj the appellate court reversed the case, holding that the instruction asked by the defendant should have been given; that the six months began to run from the day the fire first occurred, August 23d, and that there was no question to submit to the jury as to when the property was destroyed. and that the instruction given on that question was erroneous. Probably the reason why the question raised in the case at bar was not presented to the court, and decided in the Case of Little, was that the supreme court of Illinois, in the case of Johnson v. Humboldt Ins. Co., 9Ill!. 92, had already decided the same question adversely to the construction now contended for by the assured, which decision was bindil}gon the appellate court. That case and the mse of .Fullam v. }lew York Union Ins. Co., 7 Gray, 61, are the only ones I have been able to find, though there may be. others, which hold that the claUSE: limiting the time for bringing the action should receive a literal constructionaceording to its plain meaning standing alone, and without reference to the other provisions bearing on the question of time. They are both 'expressly disapproved by the New York court of appeals in Steen v. Niagara Fire Ins. Co., 89 N. Y. 315. And the Illinois case is disapproved in Barber v. Fire kMarine Ins. 00., 16 W. Va. 658. The court in each of those cases appear to have followed the usual rule of interpretation that a provision of a written instrument is to be construed according to the natural and plain meaning of the words, without reference to another qualifying rule that .where there are different clauses which, according to such rule of interpretation, would be in conflict with each other, they should all be construed together, and such a construction given them, jf possible, as will give proper effect to each part. without doing violence to either. 2. WaR the policy made void by the mortgages upon the personal property, one executed before and the other after the risk was taken? It seems quite evident, as was said by the court in Commercial Ins. Co. v. Spankneble, 52 Ill. 53, that a party claiming such a forfeiture is stricti juris, and must bring himself strictly within the clause of forfeiture to "lefeat the right. These various provisions in the policy, bristling with conditionsintended to hedge the right of the underwrit:ers, and contained
.0:' , . ' :;;FEDEB.AL'REPORTER.
ip pril1tedpG11Hon 'of'tlie, policY, are put there by, the company, and , for itsibjmefit, beforeany-cbntrlictofinsurance is made. If there is any a\llbiguity in the language so as to render it capable of two constructions, that should be adopted ,which will give effect to the policy, and carry out .the intention ofthe;pitrties; because it must be considered, in the . absence of fraud,to have)ieen within the contemplation of the parties when the insurance company has issiled its policy, and accepted the premium, that in case of a: loss the company is to pay, unless there has beensop:1e clear and manifest breach of the conditions on the part of the insuJ;ed which works:tl forfeiture Of his right. . 'Now"the language of th6'policyin regard to title is that "the interest of the assured is the entire, :unci:mditional, and sole ownership of the property,: and that the policy shall become void by the sale or transfer, or any change in title or possession) of the property insured, whether by legal processor judicial decree, or voluntary tranSfer or conveyance." the entireffudsole owner of the property within the Was the meaning of the first clause, when the' pOlicy was issued, or does the subseqlJ,ent mortgage constitute a voluntary sale, transfer,or cOllveyance of the p,noperty"the mortgage not being foreclosed, 1)or the possession of the assured disturbed? I think both branches of this inquiry must be answered in favor of the inslfred.. A mortgage, unaccompanied by any change in.thapossession', is hot a sale, transfer,' or alienation within the ordinaryacGeptation ofthese terms. The mortgagor is still the owner. is an Incumbrance upon the property created for the purpose ofeecuring the payment of money, but it is not a sale or alienation, within the 'usually accepted meaning of those words. The mortgagor stiU retains the eXclusive possession and the general right of property, and has the,same insurable interest that he had before the mortgage was eJl:ecuted, 80S, if the property burns, his debt remains unpaid, and the entire loss falls on him. It does not appear any questions were asked the insured, in regard to incumbranct)s upon the property; and, if it had peen intlmdlidthat he should guaranty that the property was free from inC\lInbrance.and that no incumbrance should in future be put upon it, it easy matter to have used language to convey such a meaning <llaarl)' As nothing is said' of mortgages, and the language used does n()t. necessarily or fairly· include mortgages, it must be presumed" tha1;,the parties did not intend to provide against them. If a mOl1gage constitutes an alteration or change in title, it is not such a one as is specified in the policy; It is not a sale or transfer, either by 01' judicial decree, or by voluntary transfer or conveyance. legal The terms "entire and sole ownership," as used in the policy, iscalculated to distinguish the ownership which the assured must have from that. of a part ownership, which the policy would not allow. Nor is the interestofthe mortgagor other than unconditional, as is that of a pledgee or isconditiohal. Of course, if the debt is not paid, the mortgagee may seize and sell the property; buteo it might also be BeUedand ,sl:>ldon attachment or encution, which' sale in: either case \Voult;! come ,wHhinthe conditions of this provision. It was lately ruled
KEARY V. MUTUAL RESERVE FUND LIFE ASS'N.
in the Eighth circuit, in the case of Waller v. NfYrlhern A88Ur. 00,,10 Fed. Rep. 232, under a similar clause, where the interest of the assured was that ota mortgagee in possession instead of being the general owner, that a failure to disclose that fact rendered the policy void. The interest .of the assured was a conditional one, and he was not the owner, whereas he· had stipulated that his interest was unconditional, and that he was the 801e. owner.· It seems to me clear upon principle, and I think the adjudged cases quite uniform in holding, that either a chattel or real-estate mortgage executed before or after the policy is issued, does not come within such a provision as that contained in the policy. I refer to a few of the leading Kronk v. Birmingham Ina. Co., 91 Pa. St. 300; Judge v. C0nnecticut 1'118.. 0>.,182 Mi1ss.521;(hrson.v. JerSflJ/Oity Ina. 00., 39 Amer. Rep. 584jf!Dmmerciallns.00. v..Spa/llJaneble, 52 Ill.53jHartford Ina. 00. v. Walsh, 54 IlL 164; Aurora F'ire Ina. 00. v. Eddy, 55 Ill. 213; Loy v. Harne Ina. 00., 24 Minn. 315; Smith v. Monmouth Ina. 00., 50 Me. 96; Shepherd v. Union Mut. Ina. Co., 38 N. H. 232; Byers v. Inaurance 00., 35 Ohio St. 606; Van Deusen-v. Charlcr Oak Ina.·Oo., 1 Rob. (N. Y.) 55. The plaintiff is entitled to a judgment for the sum of 81,098.30, with interest at 7 per cent. from September 30, 1885·',J ·. '
11. MU1'tJAL RESERVE FUND
(Oircuit Oourt, E. D. Mis8ouri. March 24, 1887.) 1.
Where a policy of insurance provides fol.' the payment of different sums to different parties. it is improper for the beneficiaries to join in one action to recover the several sums due. Where. however. all the beneficiaries have joined, and a demurrer to the petition has been sustained, it may be ordered that each plaintiff 1ile'his sepal.'ate petition upon his cause oj. action, and that the defendants be ruled to answer wIthout further service of process.
At Law. On demurrer to petition. W. B.Thompsoo andM. McKeag, for plaintiffs. ':w. C. &J.aa. C.JlYnes, for defendant.
BRElWER,J: This suit is on an insurance policy: for $10,000. The policy provides for .the payment of $2,000 to one party, $1 ,000 to an· other, and so on. All the different 'parties in interest, beneficiaries in the policy,haV'e joined in one actioD; and thedemurref'is on the ground Qf improper j'oinder cif causes of action. The petition sta.tes the condition :under' which the policy matured. It states the promise on the part of'thednsuranooicompany in one instrument to pay differentsnmsof mOney to parties. Of course; there maybe a unity of: