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January 16, 1950


Appeal, No. 191, March T., 1949, from order of Court of Common Pleas of Erie County, May T., 1948, No. 176, in case of H.J.C. Spires et ux. v. Hanover Fire Insurance Company. Order affirmed.


Charles E. Kenworthey, with him Howard N. Plate, Frank B. Quinn and Quinn, Leemhuis, Plate & Dwyer, for appellants.

John B. Brooks and John G. Gent, with them Brooks, Curtze & Silin, for appellee.

Before Maxey, C.j., Drew, Linn, Stern, Patterson, Stearne and Jones, JJ.

Author: Stern

[ 364 Pa. Page 54]


The issue here involved may appear superficially to be one merely of procedure but in reality the question is whether an insurance company must account for the performance of its obligations under a policy of fire insurance to anyone other than the named insured.

Plaintiffs in September, 1944 leased a tract of land owned by them to one Mary E. Kachler for a term of one year, which was later extended for a term of two additional years. The land contained an aeroplane hangar and was laid out as an airport. The lease provided that if the lessee built additional hangars on the premises they should remain her property and he removable by her on the termination of the lease. The lessee agreed to "keep the buildings now erected or to be erected upon said premises insured against loss by fire, at her own cost and expense", and also to "keep all runways and hangars in good condition and proper repair at her own proper cost and expense."

Some time after the execution of this lease the lessee took one Louis A. Raub as a partner in the operation of the airport. In November, 1946 they -- the partners -- obtained from the Hanover Fire Insurance Company a policy which provided that the company, for the term of three years, "to an amount not exceeding Fifteen Thousand Dollars, does insure Louis A. Raub and Mary Eileen Kaehler... to the extent of the actual cash value of the property at the time of loss,...." The property insured was described as including the one story building known as Hangar No. 1 (which was the hangar on the premises when the lease was executed), the personal property contained therein, the one story building known as Hangar No. 2, and the one story building known as Hangar No. 3. The personal property

[ 364 Pa. Page 55]

    in Hangar No. 1 belonged to Kaehler and Raub, and Hangars Nos. 2 and 3, which had been erected by them after the execution of the lease, also belonged to them. Kaehler and Raub paid all the premiums on the policy.

A fire occurred in March, 1947 which resulted in a total loss of Hangar No. 1 and other property on the leased premises. Kaehler and Raub settled with the Insurance Company for the loss occasioned by the fire but in an amount which did not include the value of Hangar No. 1. They refused to file a proof of loss in regard to that hangar and they refused also to institute any action against the Insurance Company for the loss sustained by its destruction. Thereupon plaintiffs themselves filed a proof of loss and brought the present action against the Insurance Company to recover for that loss, averring in their complaint all the facts above stated. Defendant demurred on the ground that the complaint did not show any right of action against it on the part of plaintiffs. The court below below sustained the demurrer and dismissed the complaint, from which order plaintiffs have appealed.

The sole question is whether plaintiffs can recover on a fire insurance policy in which they are not named as a party and in which they are not referred to in any manner whatsoever. That the policy was entered into by Kaehler and Raub as plaintiffs' agents -- which would give plaintiffs the status of undisclosed principals -- is not supported by the facts of the transaction, and indeed plaintiffs make no such claim. Apparently the only ground upon which they assert a right of action is their contention that the insurance was taken out for their benefit in pursuance of the provision to that effect in the lease.

There are two reasons why this claim is untenable. The first is that their contention that the insurance was carried primarily for their benefit is unwarranted. The

[ 364 Pa. Page 56]

    lease provided that the lessee was to keep the hangars in good condition and repair at her own cost and expense; she thereby obligated herself to restore plaintiffs' hangar at the time of the termination of the lease even though it were meanwhile destroyed by fire or other accident: Hoy v. Holt, 91 Pa. 88; Girard Trust Co., Agent, v. Tremblay Motor Co., 291 Pa. 507, 518, 140 A. 506, 510. In view of that obligation the lessee had a primary and paramount insurable interest of her own in the policy, that interest being the value of the property which she was bound to replace: Imperial Fire Insurance Co. v. Murray, 73 Pa. 13. A policy of fire insurance is a personal contract of indemnity against such loss as the insured may sustain; the insurance is not of the property: as such, but of the interest of the insured in the property: Gorman's Estate, 321 Pa. 292, 295, 184 A. 86, 87; Olyphant Lumber Co. v. Peoples' Mutual Live Stock Insurance Co. of Philadelphia, 4 Pa. Superior Ct. 100, 104; Abbottsford Building & Loan Association v. William Penn Fire Insurance Co., 130 Pa. Superior Ct. 422, 426, 197 A. 504, 506. What defendant's policy insured, therefore, was the interest of the partners, Kaehler and Raub, in the property insured.

The other reason why plaintiffs cannot recover on the policy is because, whatever incidental interest they may have had therein, and even if, as between them and the lessee, they were meant to be a beneficiary thereof, they are not referred to in the policy itself as an intended beneficiary; indeed it does not appear that the Insurance Company ever knew of the lease from plaintiffs to Kachler, or even that any such persons as plaintiffs existed. To be a third party beneficiary entitled to recover on a contract it is not enough that it be intended by one of the parties to the contract and the third person that the latter should be a beneficiary, but both parties to the contract must so intend and must indicate

[ 364 Pa. Page 57]

    that intention in the contract; in other words, a promisor cannot be held liable to an alleged beneficiary of a contract unless the latter was within his contemplation at the time the contract was entered into and such liability was intentionally assumed by him in his undertaking;*fn* the obligation to the third party must be created, and must affirmatively appear, in the contract itself: Klinger v. Wick, 266 Pa. 1, 5, 6, 109 A. 542, 543; 17 C.J.S. 1127-1130, § 519(c); 12 Am. Jur. 831, 832, § 280; 833, 834, § 281. The fact, therefore, that plaintiffs would be incidentally benefited would not give them a right to recover on the policy by virtue of any arrangement between them and Kaehler where the Insurance Company assumed no obligation to them in the policy but believed itself to be insuring only the interest of the persons named therein.

Plaintiffs suggest that they are entitled to bring suit on the policy because of Pa. R.C.P. 2002, which provides that all actions shall be prosecuted by and in the name of the real party in interest. This, however, overlooks the fact that Rule 2002 is merely procedural in scope and does not work any change in the substantive law; it does not go into operation until after it has been determined that a given person is the real party in interest: Goodrich-Amram, § 2002(a)-2; § 2002(a)-14. From what has heretofore been said it is clear that plaintiffs are not the real party in interest, for the real party in interest in any given contract or chose in action in the person who can discharge the duties created and

[ 364 Pa. Page 58]

    control an action brought to enforce rights, -- not necessarily the person who may be ultimately entitled to the benefit of any recovery obtained nor the person beneficially interested therein: Goodrich-Amram, § 2002(a)-3; Kusmaul v. Stull, 356 Pa. 276, 280, 51 A.2d 602, 604. To be the real party in interest one must not merely have an interest in the result of the action but must be in such command of the action as to be legally entitled to give a complete acquittance or discharge to the other party upon performance. It is obvious that plaintiffs ...

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