Opinion
May 3, 1954 —
June 8, 1954.
APPEAL from a judgment of the civil court of Milwaukee county: LEO B. HANLEY, Judge. Affirmed.
For the appellant there was a brief and oral argument by N. Paley Phillips of Milwaukee.
For the respondent there was a brief and oral argument by Michael J. Dunn of Milwaukee.
Action by the plaintiff E. H. Musselman to recover for a loss resulting from a collision of plaintiff's automobile upon a policy of collision insurance issued by the defendant Service Fire Insurance Company of New York, and also to recover from said company for the amount of the unearned premium on said policy due upon the cancellation thereof by defendant.
Plaintiff purchased a Frazer automobile from a dealer at Kewaunee, Wisconsin, under a conditional sales contract, which contract was assigned by the dealer to Universal C. I. T. Credit Corporation (hereinafter referred to as "Universal C. I. T."). The premium on the policy of insurance on which suit is brought was paid by Universal C. I. T., and the policy provided that loss was payable to the plaintiff and Universal C. I. T. "as their interests may appear."
On November 12, 1950, the automobile was damaged in a collision. As of that date the plaintiff was in default in making payments on the conditional sales contract and the balance then owing to Universal C. I. T. was $2,208.46. Universal C. I. T. made proof of loss on the policy in the sum of $771.97 and the defendant Insurance Company made settlement with Universal C. I. T. on the basis of paying said amount less $50 as permitted by the policy. The policy was canceled on December 12, 1950, and an unearned premium in the sum of $122.25 was paid by defendant to Universal C. I. T. pursuant to a clause in the conditional sales contract so providing.
Both plaintiff and defendant moved the trial court for summary judgment. In the affidavit of plaintiff filed in support of his motion it was alleged that Universal C. I. T., after the collision loss had occurred, had attempted to foreclose its conditional sales contract and to sell the damaged vehicle at a public auction on December 22, 1950, but that Universal C. I. T. failed to comply with the statutory requirements as to giving notice and as to holding the sale within thirty days after the repossession.
The motion of plaintiff for summary judgment was denied and that of defendant granted. Judgment was entered under date of November 16, 1953, dismissing plaintiff's complaint and awarding defendant costs. From such judgment plaintiff appeals.
This appeal is ruled by our decision in Kolehouse v. Connecticut Fire Ins. Co., ante, p. 120, 65 N.W.2d 28. The attempted foreclosure sale of the damaged vehicle subsequent to the date of collision loss, and the failure to comply with the provisions of ch. 122, Stats., with respect to the proper procedure to be followed in conducting such foreclosure sale, did not affect the insurable interest of Universal C. I. T. at the time of loss. Therefore, defendant Insurance Company was obligated to make settlement for the loss with Universal C. I. T., inasmuch as the balance of the purchase price owing by plaintiff on the vehicle at the time of collision far exceeded the collision loss.
Plaintiff's complaint alleges that the amount of damage due to collision loss was $1,000, which is in excess of the amount for which settlement was made by the defendant with Universal C. I. T. However, because the insurable interest of Universal C. I. T. was far in excess of $1,000 as of the date of loss, it is immaterial for the purpose of this action whether the loss was $771.97 or $1,000. Even if the true measure of the loss were $1,000, as between plaintiff and the defendant Insurance Company, all of such amount would have been payable to Universal C. I. T. The latter is not a party to this action and we, therefore, do not have the issue of unjust enrichment before us here which was present in Kolehouse v. Connecticut Fire Ins. Co., supra.
Plaintiff's counsel contends that inasmuch as neither the conditional sales contract, nor a true copy thereof, was before the court upon motions for summary judgment, it was error for the trial court not to have given judgment to the plaintiff for the $122.25 unearned premium resulting from the cancellation of the policy. The answer of defendant alleged that the conditional sales contract contained a provision requiring the defendant to pay such unearned premium to Universal C. I. T. The affidavit of plaintiff which was before the court on the motions for summary judgment did not deny that the conditional sales contract so provided, but contained this allegation with respect to such unearned premium:
". . . that no credit at any time was given by the Universal C. I. T. Credit Corporation nor requested to be given to this plaintiff for any alleged refund of premiums and that the Universal C. I. T. Credit Corporation, in view of the facts set forth herein, was not entitled to any refund on premiums as the contract has been paid in full by virtue of the said Universal C. I. T. Credit Corporation failing to properly foreclose said conditional sales contract."
The allegations of the answer, that the conditional sales contract provided that the unearned premium would be payable to Universal C. I. T. as holder of the conditional sales contract, was not put in issue by the above-quoted extract from plaintiff's affidavit. Plaintiff's affidavit merely raised the point of law that Universal C. I. T. was not entitled to such unearned premium because of its failure to properly foreclose the conditional sales contract. At the time of the cancellation of the policy on December 12, 1950, Universal C. I. T., under the provisions of the conditional sales contract, was entitled to such unearned premium and the defendant therefore rightly paid the amount of the same to Universal C. I. T.
By the Court. — Judgment affirmed.
STEINLE, J., took no part.