Daily Kennebec journal., 1910-11-16
RESCR|PTS.
Judgement for Defendant
in Fire Insurance Case.
Verdict Excessive in Action
Against Maine Central R. R.
Decree Of Presiding Justice Reyers'
ed In Piscataquis Equity Action.

The law court has handed down
reaclipt in the Cumberland county
case Of George W. Towle vs.. Dirigo
Mutual Fire Insurance Co, giving
Judgment for thu. defendant. The re-
script which Involves a number of
very important legal points is as fol-
lows:
R"Script. Savage J.
The defendant. Il Mutual Fire Insur-
anct com Jany. in consideration of
cash payment and Il premium note,
in 1904. issued to one Adrianna Smith
a policy in the standard form, insuring
l.sr dwelling house ami barn. The pol
icy contained TO permission for other
insurance. Mrs. Smith died IN 1908.
BY her viii she devised the insured
premises t" her son. and in 1906 the
son conveyed them to his father. Eben
Smith. After the death Of Mrs. Smith
Ebcn Smith notified the defendant OF
that fact and directed that notices of
assessments on the premium note
should thereafter be sent to him. This
was done. and he paid all subsequent
assessments Of which he had notice.
including one made after a fire which
destroyed tile buildings in 1909, and
after due proofs of loss had been made
py Ehan Smith. After the property
was conveyed to Mr.. Smith he pro-
curel additional insurance on the
dwelling house. but none on the barn.
Tho proofs of loss disclosed the ad
,jticral insurance. as well as the
tlarSfer OF title to the son by will,
and from the son to Eben Smith by
Iii
by endorsement. had been made pay
al" to tho. executor Of the assignee
ci a martgage upon the premises. as
his mortgage interest might appear.
and nn that day the executor. with the
assent Of the defendant. assigned his
interest in the policy as mOrtgagee to
the plaintiff. At the time of the fire.
the plaintiff held two other mortgages
upon the insured premises. After the
proofs of loss wore made Eben Smith
assigned his claim for insurance to
tn" plaintiff as mortgaSec. The defend
ant had no notice of the additional in
Surancc until after the fire. and none
of the transfer Of tie title. except such
as should be inferred from the notice
by EbGn smith that Mrs. Smith was
dead. and til" request that thereafter
notices of assessments should lie sent
to him. The plaintiff claims both as
mortgage and as assignee ni Eben
Smiths claim:
1t IS held:
|; !. That under the terms Of the poll
scy. by which it was provided that lit
K shall he void if the insured now has
o- shall hereafter MAKE any other in
surance on the said prnpertr without
inc assent oi tn" compauN. or if.
without such assent. the said properly
shall fe Sold the policy was avoided.
al least as to the dwelling house by
the proculin.c of the additional insur-
ance. and as to all of the property.
by tie sal" and conveyance from the
dcvissee of tAe insured to another per
son.
=. That the provision in tie policy
t. the fleet ihat il made PAYABLE to
MORTGAGE no act or default If any
other person shall affect the mort
g2gce's right ia Recover does not pro-
tect II" llaintiff. since the policy was
not n)a dr rayabls t" him as murtgagee
under tie two mortgages which he
now holds. but under an entirely dis
tinct mortgage.
:, That the plaintiff as assignee has
II" greater right than lis asSignor.
Eben smith. lad
4. That the notice siyen to the de-
fendart of the death of the insured
and tn" directior to Serd the notices
of assessment thereafter to Eben
Smith was not sufficient to charge it
WitA nutict tnat the property had been
'sHid' 70 him and that the defendant,
IlaTiig nn other notict is not eStopped
by the making Of assessments upon the
premium note. the giving notice there
of t. h!m, a1o the receipt and reten-
li"n Of the assessments paid Iy him
t" set up tile conveyance to him hy
deed contrary to the nrovisionq of the
policy as l"fensstsgsaa aet;n, tlron
ne poIicl. 81
8 That change ofstitle by will or