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control, not only of the adjustment of has not come into contractual relathe loss, but of the action. The as- tions with the insurer, who has obsured is the party named in the con- tained no insurance protection, and tract, and bound by it, and the one to who is only an appointee of the owner whom the insurance company is as respects whatever may become due bound; and in such a case as this the under the contract of insurance, to authorities seem to agree that the as- which he is a stranger, acquires the sured is the only person to be con- right, even by indirection, to assume sulted in determining the amount of the title of the insured.'the loss, and that he is the only party And the Canadian court has held to bring and control the action.” that under a statute providing that if

So, the Connecticut court has held a difference shall arise as to the value that an open mortgage clause attached of the property insured, or the amount to a policy of fire insurance, provid- of the loss, the matter shall be subing merely that the loss, if any, shall mitted to arbitration by arbitrators to be paid to the mortgagee, as his inter- be chosen by the assured and the inest may appear, gives the mortgagee surance company, who in turn shall no right to participate in arbitration choose a third, and the award shall be proceedings to fix the amount of loss, conclusive as to the amount of the so that he will, therefore, be bound by loss, a mortgagee to whom loss under the adjustment and award, although an insurance policy was payable as an erroneous rule of law was applied his interest might appear is bound by by the appraisers in the determination an appraisement of the loss by arbiof the value of the property, and al- trators appointed pursuant to the statthough the mortgagee was given no ute, if there was no fraud or collusion opportunity to be heard. Collinsville in securing the arbitration, for the Sav. Soc. v. Boston Ins. Co. (Conn.) rights of the mortgagee are subject to supra. The court states: “We find all statutory conditions, and the words it difficult to harmonize the accepted "the assured in the provision for proposition that a mortgagee, by force arbitration manifestly apply only to of the appointment clause in question, the mortgagor. Haslam v. Equity F. does not become a party to the insur- Ins. Co. (1904) 8 Ont. L. Rep. 246. ance contract, and is not in privity And in Chandos v. American F. Ins. with the insurer, with the other propo- Co. (1893) 84 Wis. 184, L.R.A. 321, sition, that nevertheless he acquires 54 N. W. 390, it is held that a mortthe right to intervene between the only gagee to whom insurance is made payparties having contractual relations, able as his interest may appear, but and to exercise the functions which who is not entitled to the whole insurare created by the contract to which ance, is not a necessary party to an he is a stranger, and which are exer- adjustment of a loss on the property cised in pursuance of its provisions. insured, and need not be given notice

• It is easy to understand how a of an appraisement of damage, almortgagee, having acquired the status though it might have been proper for which the 'union mortgage clause' the insured to consult him, or join him gives one, whatever that status, tech- as a party plaintiff. The court states: nically regarded, may be, might be “Nearly all, if not all, the authorities fairly entitled to be comprehended cited ... which hold that the mortwithin the descriptive term “the in- gagee is the sole party in interest in sured,' and, if not, that the express the insurance, and must be representlanguage of that clause so defines his ed in the arbitration or other adjustrights and limits the rights and pow- ment of the loss, are cases where the ers of the property owner that the direction is to pay the whole insurance right to participate in any adjustment to the mortgagee or other third perof the loss is impliedly accorded him. son, who thereby becomes the assignee On the other hand, it is not easy to of the policy and the loss. In this discover upon what theory it can be case it could not be known what interreasonably claimed that a person who est the mortgagee might have in the insurance, or what interest in her mortgage clause, would not be bound might appear. First, her interest was by an adjustment of the amount of the not commensurate with the insurance; loss between the property owner and second, it was not known what part, the insurance company, since, under if any, of the mortgage, would remain the union mortgage clause, the mortunpaid by the mortgagor.

It was

gagee's rights could not be affected by therefore uncertain what interest the any act of the mortgagor subsequent mortgagee had, if any, in the insur- or prior to the loss. ance; and the assured, as the mort- And in Hartford F. Ins. Co. v. Olcott gagor, had at least controlling interest (1881) 97 Ill. 459, it was held, under in it. She was the owner of the prop- a policy containing the union morterty and of the equity of redemption gage clause, that the mortgagor could in the mortgaged premises, and as not “invalidate" the interest of the much or more interested in paying the mortgagee in the insurance by agreemortgage as or than the mortgagee in ing to an appraisal of loss to which obtaining payment. It follows that in the mortgagee was not a party-citing all cases where the language of direc- Hastings v. Westchester F. Ins. Co. tion is that the insurance should be (1878) 73 N. Y. 141, to the effect that paid to the mortgagee 'as her interest the provision that the mortgagee's inmay appear,' the assured mortgagor terest should not be "invalidated" remains the responsible party, or the meant that it should continue valid party in interest, to control the insur- for the full amount, regardless of any ance and the adjustment of the loss." act or neglect of the owner or mortUnder union mortgage clause policy. gagor. The court reasoned that the The courts are, with one exception

union mortgage clause distinctly (see Erie Brewing Co. Case (Ohio)

recognized an interest separate from infra), in accord in holding that, that of the mortgagor or owner of the under a union mortgage clause policy, property; that this interest was for

- viz., a policy providing that no act the security of the mortgagee; that, or neglect of any person other than in substance, the policy as to the the mortgagee shall affect the latter's mortgagor was one thing, and as to rights or interest in a policy on the the mortgagee, another and very difmortgaged property, payable to him,- ferent thing; that as to the former, the mortgagee is not bound by an ad- the policy was to be read without the justment between the mortgagor and mortgage clause, while as to the latthe insurer, without his knowledge or ter, it was to be read as affected by consent, since such a clause creates a that clause; and that in effect there new and separate contract between the were two distinct contracts of insurinsurer and the mortgagee, effecting ance,-one by the mortgagor, the other an insurance of the mortgage interest.

by the mortgagee. Scottish Union & Nat. Ins. Co. v. Field In Collinsville Sav. Soc. v. Boston (1902) 18 Colo. App. 68, 70 Pac. 149; Ins. Co. (1905) 77 Conn. 676, 69 L.R.A. Collinsville Sav. Soc. v. Boston Ins. 924, 60 Atl. 647, the court remarked, Co. (1905) 77 Conn. 676, 69 L.R.A. 924, in passing, that it required no argu60 Atl. 647; Hartford F. Ins. Co. v. ment to demonstrate that the union Olcott (1881) 97 Ill. 459; McDowell v. mortgage clause precludes a submisSt. Paul F. & M. Ins. Co. (1913) 207 sion to appraisers which should be N. Y. 482, 101 N. E. 457.

binding upon the mortgagee without So, in Scottish Union & Nat. Ins. Co. his concurrence or ratification. v. Field (1902) 18 Colo. App. 68, 70 However, in Ohio it has been held Pac. 149, where a policy providing that a mortgage clause attached to a that the ascertainment or estimate of fire policy at the time it was issued, the loss should be made by the insured making the loss payable to the mortand the insurance company, contained gagee, as his interest may appear, and a union mortgage clause, the court which provided that “this insurance, held that the trustee, to whom the as to the interest of the mortgagee policy was payable under the union only therein, shall not be invalidated


by any act or neglect of the mortgagor, notice to him, is contrary to practical

is not an assignment of the ly every reported case. One of the policy to such mortgagee, and, in the cases which the court relied on, and absence of fraud or collusion, the the one most nearly in point, was mortgagee is bound by an award of Chandos American F. Ins. Co. appraisers provided for and required (1893) 84 Wis. 184, 19 L.R.A. 321, 54 by the terms of the policy in event of N. W. 390, supra, which, as above disagreement between the insurer and shown, involved a simple loss-payable the insured, as to the amount of the clause,—that is, one which did not exloss, although the mortgagee was not pressly provide against acts of the a party to, and had no notice of, the mortgagor affecting the mortgagee's appraisal and award. Erie Brewing

Erie Brewing interest. In this connection it will be Co. v. Ohio Farmers Ins. Co. (1909) noted that the Connecticut court in 81 Ohio St. 1, 25 L.R.A.(N.S.) 740, 135 Collinsville Sav. Soc. v. Boston Ins. Am. St. Rep. 735, 89 N. E. 1065, 18 Co. (1905) 77 Conn. 676, 69 L.R.A. 924, Ann. Cas. 265. The court here was 60 Atl. 647, supra, in holding that a of the opinion that the union mort- mortgagee is bound by an adjustment gage clause contained in the policy in between the mortgagor and the inthis case did not create a new and surer, made without his knowledge or separate contract between the insurer consent, where the policy contains a and the mortgagee, but merely desig- simple loss-payable clause, stated that nated the mortgagee as payee of the it required no argument to demonproceeds of the insurance, as though strate that under a policy containing the policy contained merely a loss- a union mortgage clause,-one of the payable clause. The decision on this character contained in the Erie Brewpoint, as well as the decision that the ing Co. Case, supra,-a submission to mortgagee to whom a policy contain- appraisers which would be binding on ing a union mortgage clause is pay- the mortgagee could not be made withable is bound by an award without out his consent or knowledge.

G. S. G.


Plff. in Err.,


United States Circuit Court of Appeals, Ninth Circuit - August 4, 1919.

(259 Fed. 555.) Master and servant, $ 479 — liability of independent contractor for neg

ligent injury. 1. An independent contractor for repair of a bridge cannot avoid liability for injury to one attempting to use the bridge through conditions brought about by his own negligence in leaving pass ways unbarred, by the fact that the contract imposed upon the municipality the duty of keeping the bridge closed to traffic during the progress of the work.

[See note on this question beginning on page 403.] Damages, $ 224 - effect of absence of damages for impairment of such caevidence.

pacity. 2. In the absence of evidence as to [See 8 R. C. L. 652, 653; 2 R. C. L. earning capacity of a dressmaker in- Supp. 636; 5 R. C. L. Supp. 479. See jured by another's negligence, the also notes in 9 A.L.R. 510; 27 A.L.R. jury should not be permitted to award 430.]

ERROR to the District Court of the United States for the Northern Division of the Eastern District of Washington (Rudkin, J.) to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have been caused by defendant's negligence. Reversed.

The facts are stated in the opinion of the court.

Argued before Gilbert, Ross, and barrier across the driveway, but Hunt, Circuit Judges.

there was a conflict as to whether Messrs. A. C. Spencer and Hamblen the barrier extended from the end & Gilbert for plaintiff in error.

of the driveway and over the walk Messrs. Plummer & Lavin for defendant in error.

way far enough to warn pedestrians

to keep off the walk. Mrs. Branham Hunt, Circuit Judge, delivered the testified that she "swung around" opinion of the court:

the barrier and walked on the The defendant in error recovered planks, and another witness said verdict and judgment for personal that the barrier did not make it injury, and the plaintiff in error necessary to get off the sidewalk at asks review.

all before reaching the planks, and In Pullman, Washington, the that the openings were left for foot tracks of the plaintiff railroad com- passengers as they had been before, pany cross Kamiaken street at right and that the way was commonly angles. The Palouse river runs used. The court submitted to the parallel with the railroad company's jury the question whether or not right of way, and Kamiaken street there was a sufficient barrier to warn runs north and south over the river the public against the use of the upon a bridge; the end of the bridge walk, and charged that if there was being adjacent to the right of way a sufficient barrier the railroad comof the railroad company. The bridge pany would not be responsible. had a driveway through the center, It is said that the court erred beand sidewalks on either side. The cause, under the contract of repair, city of Pullman made a contract the duty of keeping the bridge with the railroad company for the closed to traffic during the period of repair of the bridge. The railroad construction was imposed upon the company was prosecuting the work, city of Pullman; but, as it was clear but before February 4, 1916, tem- that the railroad company was an porarily suspended on account of independent contractor, it cannot bad weather, and placed a plank avoid liability for walk, which was much used by pe- injuries sustained destrians, from the south approach to a third person, bility of inde

pendent conto the bridge, extending northerly where such injuries tractor for

negligent to a point where the sidewalk was have been inflicted

injury. intact on the north end. The planks because of condiwere covered with hard snow at the tions brought about by its negligent time of the accident to the plaintiff action. Hunter V. Montesano, 60 below.

Wash. 489, 111 Pac. 571, Ann. Cas. On the evening of the 4th of Feb- 1912B, 955, cited by the plaintiff ruary, 1916, after dark, Mrs. Bran- in error, is not applicable; for in ham, in walking to the city, went that case the evidence conclusively upon the plank walk to cross the showed that there were sufficient bridge, and had gone a few steps barriers to warn the pedestrians of when her foot slipped into a hole or the danger, and that the injured crack, and her ankle joint was frac- man knew of the dangerous conditured. She testified that, when she tion of the streets, while here the started to walk across, there was verdict of the jury is founded upon nothing to indicate that there was evidence that there was no barrier any crack between the boards, or sufficient to warn the public not to any hole to fall into. There was a use the way.

Master and

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(259 Fed. 555.) Plaintiff in error contends that produced, the case is brought within the court erred in instructing as fol- the general rule that the amount lows: “If you find for the plaintiff, should not have been left to the conit will be incumbent upon you to in- jecture of the jury. In Leeds v. sert the amount of her recovery. Metropolitan Gaslight Co. 90 N. Y.

. You will compensate her for any loss 26, the court of apwhich she has sustained through peals of New York effect of abimpairment of her earning capacity spoke of the ele- sence of eviin the past, although I believe that ment of damage there is no testimony before you as which consisted of lost time as pureto what her earning capacity was. ly a pecuniary loss or injury, and These items will make up

said: “The rule of recovery is comamount of your verdict, in the event pensation. Where the loss is pethat you find for the plaintiff.” cuniary, and is present and actual,

The ground of the exception was and can be measured, but no evithat there was no evidence of what dence is given showing its extent, was the earning capacity of Mrs. or from which it can be inferred, Branham. No other instruction up- the jury can allow nominal damages on the subject of the measure of only.... Where actual pecuniadamages was given, and the record ry damages are sought, some evishows that the court was correct in dence must be given showing their the belief that there was no testi- existence and extent. If that is not mony before the jury as to what the done, the jury cannot indulge in an earning capacity of Mrs. Branham arbitrary estimate of their own." was. The question, therefore, comes See Baker v. Manhattan R. Co. to this: There being evidence that 118 N. Y. 533, 23 N. E. 885, 5 Am. plaintiff was a dressmaker at the Neg. Cas. 312; Sutherland, Damtime of her injury, and dependent ages, $ 1248; Joyce, Damages, $8 upon that pursuit as a livelihood, and 227, 228; Sedgw. Damages, § 171. that because of her injuries she had The judgment is reversed, and the not been able to carry on her busi- cause remanded, with directions to ness since her injury, and would not

grant a new trial. be able to use her foot freely upon a sewing machine for some time to come, was the court in error, in sub

NOTE. mitting to the jury the question of damage to the general impairment of plaintiff's earning capacity? Ob- Personal liability of contractor in viously she was entitled to nominal respect of injuries sustained by third damages therefor. But

the person during the progress of the amount of such damage was sus- stipulated work is the subject of the ceptible of some proof, and none was annotation commencing post, 403.


JOHN P. PETTYJOHN & SONS, Plffs. in Err.,


Virginia Supreme Court of Appeals - September 17, 1919.

(126 Va. 72, 100 S. E, 813.) Master and servant, § 479 — - liability of contractor for injury to subcon

tractor's servant. 1. An employee of a subcontractor for the plumbing of a building, who attempts to use a scaffold erected by the general contractor to place windows in a gable of the building, for the purpose of reaching the roof, when

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