1058 In Williams v. Pioneer Co-op. Inc. Co., 183 | icies were ostensibly in force at the time App. Div. 826, 171 N. Y. Supp. 353, it was held: "Where à fire insurance policy was rendered void by the act of insured in leaving the property unoccupied, a mortgagee cannot recover on the policy; there being no mortgagee clause thereon." In that case the policy recited that the loss, if any, was first payable to the mortgagee, and the balance, if any, to the in sured. In Auto Owners' Protective Exch. v. Edwards (Ind. App.) 136 N. E. 577, an action by the conditional seller of an automobile on a policy taken out by the conditional purchaser, plaintiff alleging that his interest exceeded the amount due on the policy, which policy insured the plaintiff as his interest might appear, it was held that the plaintiff must aver that insured had performed the contract conditions in order to state a cause of action and that the insurer could make any defense against the plaintiff that it could against the conditional purchaser. In 26 C. J. 273, the rule is thus stated: "Under a policy making the loss payable to a third person as his interest may appear the payee is not a party to the contract but only an appointee whose rights are dependent upon the rights of the insured and a violation by the latter of the conditions of the policy will forfeit the rights of such appointee." And in 14 R. C. L. 1084, it is said: "A clause in a policy merely making the loss payable to a mortgagee as his interest may appear makes the mortgagee the simple appointee of the mortgagor to receive the proceeds to the amount of his interest, and to place his indemnity at the risk of every act and omission of the mortgagor that avoid, terminate, or affect the insurance of the latter's interest under the terms of the policy." To the same effect is Cooley on Insurance, 1521; May on Insurance, § 447; Ostrander on Insurance, § 117; Clement on Insurance, vol. 1, p. 37; Fire Insurance Contract, by Insurance Society of N. Y., p. 201; and authorities collected in the notes in 135 Am. St. Rep. 746, and 18 L. R. A. (N. S.) 199. The case before us is identical with N. B. Fire Ins. Co. v. Morris Bank, 136 Va. 402, 118 S. E. 236. There C. B. Toler took out an insurance policy on a automobile. The policy contained this clause: "Loss, if any, payable to the Morris Plan Corporation, as their interest may appear." The policy also provided that it should be null and void: "If at the time a loss occurs there be any other insurance covering against the risks assumed by this policy which would attach if this insurance had not been effected." Thereafter Toler took insurance upon the the automobile was destroyed by fire. The mortgagee sued and recovered judgment in the court below and this was reversed by the Supreme Court with directions to enter judgment for defendant. The court said: A mortgagee of insured property may protect his interest therein so that no independent action of the mortgagor can injuriously affect it either by insuring in his own name or by having a clause inserted which stipulates that the interest of the mortgagee shall not be invalidated by the act or neglect of the mortgagor, but that had not been done. The court held: "Where there is merely a clause providing that the loss, if any, shall be payable to the mortgagee as his interest may appear, the contract as to the mortgagee is merely collateral to the principal undertaking to pay the mortgagor, the mortgagee is merely, an appointee of the fund, his rights are no greater than those of the assured, and therefore a breach by the latter will avoid the policy as to the mortgagee." The situation is to be distinguished from that presented in Insurance Co. v. Coverdale, 48 Kan. 446, 29 Pac. 682, where the court construed the union mortgage clause which specifically provided: "It being hereby understood and agreed that this insurance, as to the interest of the mortgagee, shall not be invalidated by any act or neglect of the mortgagor." In that case it was properly held that by virtue of the mortgage clause the mortgagee had a contract of insurance with the company on which he could maintain an action Under such a clause it in his own name. has been repeatedly held that 'he mortgagee will not be defeated by the neglect or failure of the mortgagor, the assured, to comply with the terms of the policy, especially as to conditions subsequent. The case is also to be distinguished from Stamey v. Assurance Co., 93 Kan. 707, 150 Pac. 227; Id. 96 Kan. 99, 150 Pac. 227. There the policy contained this provision: "If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee, or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as herein described, the conditions hereinbefore contained shall apply in the manner expressed in such provision and conditions of the insurance relating to such interest as shall be written upon, attached, or appended thereto." All that was attached to the policy was a mortgage clause reciting: "Loss, if any, is first payable to the United States Carriage Company as their interest may appear." No statement whatever of the provisions or automobile in another company, and both pol-conditions of insurance were written upon, (225 P.) 4. Contracts 95 (3)-Rule as to character of threats of personal violence or of criminal prosecution to constitute duress, stated. Threats of personal violence or of criminal prosecution to amount to duress must be of such a character or made under such circumstances as to destroy the will of the one threatened to such an extent as to compel him to act in a manner contrary to his will and to his detriment. 5. Appeal and error 1068(3)-Instruction held harmless in view of evidence. attached, or appended to the policy except the law is not tantamount to a threat of crimthe mortgage clause. It was there held that inal prosecution. because of the above-quoted provision in the policy the rights of the mortgagee would not be affected by conditions of the policy unless such conditions were contained or referred to in the mortgage clause itself. This decision is in accord with the great weight of authority upon this point as shown by the authorities collected in the note 19 A. L. R. 1449, though there are decisions to the contrary. But the doctrine of that case is not applicable here for the reason that the policy sued on in this action contains no clause like that contained in the policy in the Stamey Case. It may be noted that even though the policy contained a clause like that in the Stamey Case the mortgagee is bound by the conditions of the policy if the mortgage clause itself contains or refers to those conditions, as in Longfellow v. Insurance Co., 102 Kan. 473, 170 Pac. 813, and Burns v. Insurance Co., 103 Kan. 803, 176 Pac. 985, where the mortgage clause provided that the loss, if any, was payable to the mortgagee, "subject, however, to all the terms and conditions contained or referred to in this policy." From what has been said it is clear that the provision in this policy that the loss, if any, is payable to Hill-Howard Motor Company, mortgagee, as their interest may appear, merely constituted the mortgagee an appointee to receive the money in the event of loss, but in no sense relieved the mortgagee from the effect of acts or omissions of the assured which avoided the policy. From which it follows that the judgment of the court below must be reversed with directions to enter judgment for the defendant. All the Justices concurring. RINEY V. DOLL et al. (No. 24940.) (Supreme Court of Kansas. May 10, 1924.) (Syllabus by the Court.) 1. Contracts 95 (3)-Threat in alternative to give beating at future, Indefinite, time not duress. A threat in the alternative to give one a beating at some remote, future, indefinite time is not such a threat of personal violence as will constitute duress. 2. Contracts 95(4)-Threat to take legal proceedings to recover for injuries not duress. It is not duress for one to threaten to take such legal proceedings as the law affords to recover damages for claimed injuries. 3. Bills and notes 104-Threat to prosecute another to full extent of law not a threat of criminal prosecution constituting duress. A threat by one who claims damages from another to prosecute him to the full extent of An instruction that threats of criminal prosecution must be of such a character as to overcome the will of a person of ordinary firmthis case, not to constitute reversible error. ness is erroneous, but held, under the facts in Appeal from District Court, Seward County; Charles E. Vance, Judge. Action by Ira Riney against C. E. Doll and others. Judgment for plaintiff, and defendants appeal. Affirmed. J. W. Davis, of Greensburg, for appellants. G. L. Light and F. O. Rindom, both of Liberal, for appellee. HARVEY, J. This is an action on a promissory note and to foreclose a mortgage. The defense was duress. It was tried to a jury, verdict and judgment for plaintiff, and defendants appeal. Riney owned an automobile which he took to Doll, a car painter, to be painted. Without authority to do so, Doll drove the car on a trip, had an accident, and damaged the car. Riney asked Doll to pay or settle the damage. At the time Riney was quarantined at home because of scarlet fever in his family, and he told Doll to settle with an attorney whom he named. Doll employed an attorney. After some bickering, the two attorneys and Doll got together and agreed upon the settlement. In effect, they agreed that the car was worth $1,400 before Doll damaged it, and Doll and his wife executed a note to Riney in that amount and secured the same by a second mortgage upon real property. Doll did not want to keep the car, so an agreement was drawn and signed by the attorneys, by which Doll was to take the car to certain mechanics and have it repaired. Then Doll was to paint it and sell it, Riney to assist in effecting a sale, and the proceeds were to be applied, first, to pay the mechanics for making the repairs, and the balance upon the note to Riney. This was done, and this suit was brought to recover the balance due upon the note and to foreclose the mortgage. The defendants filed separate answers, admitted the execution of the note and mortgage and that the same was not fully paid, but averred that they were executed under For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes duress. On that point Doll's answer alleged, He said: 'I will prosecute you to the fullest that "Plaintiff called upon the defendant and presented him with the contract, note and mortgage set forth in the petition. * At that time * * plaintiff * demanded that they sign the same immediately, and stated to these defendants that if they failed or refused to sign the same, he would have the defendant C. E. Doll criminally prosecuted. The plaintiff further threatened the defendant with physical violence; and the defendants believing that if they did not sign the said contract, note and mortgage, the plaintiff would carry out his threat of instituting criminal proceedings and of doing the defendant bodily injury." extent of the law if you do not fix that deal up with Mr. Light at his office, and then, if I cannot do anything with you, I will beat the soup out of you.'' He further testified: He "I made up my mind to sign it because of the threats. Q. What was you afraid of? A. I was afraid he would fulfill his statements. Q. What was you afraid of? A. I was afraid he would beat the soup out of me and get out a criminal action against me. looked me straight in the face. I thought he was going to hit me any minute. He said he would beat the soup out of me. Q. When did you first become frightened and scared of Mr. Riney? A. When he hollered that he was not make any threats or do anything except shut through with me. Did Mr. Riney off the car that day you were up to his house? A. Yes, sir; after he shut off the car, he had his fist up there, and I thought he might hit me. I told him I was in no shape, and commenced to beg him not to hit me. He said, 'I won't do it now, but I will afterwards.'" This testimony is corroborated in part by defendant's son, Cecil Doll, who was with him. The evidence is that these threats were communicated to Mrs. Doll by her husband (though that testimony was later withdrawn) and by the son. Mr. Doll's attorney testi The answer further avers that had it not been for fear of prosecution and physical violence, he would not have signed the contract, note, and mortgage, and further that the amount was greatly in excess of the damages to the car and was unconscionable and un.just. The separate answer of Mrs. Doll averred that at the time she signed the note and mortgage she was advised that plaintiff had made threats to her husband to have him criminally prosecuted and had also threatened him with personal violence, and that she feared the threats would be carried out, and this was her sole reason for signing the in-fied that he had objected all the time to that struments. The reply was a general denial. The evidence disclosed that the car was damaged the morning of October 12. Doll saw Riney that day and told him he wanted to pay the damage he did to the car. The note, mortgage, and contract were drawn at the office of plaintiff's attorney late in the afternoon of October 15. The persons pres ent at that time were plaintiff's attorney, Doll, and his attorney. Riney was not present; neither was Mrs. Doll. Doll signed the note and mortgage at that time, and his attorney took them to Doll's residence, where they were signed by Mrs. Doll without objec-al violence nor because of threats of criminal tion. Neither Riney nor his attorney was present. She had never talked to Riney and did not know him. There is no claim that Riney's attorney made any threats of any character which induced the execution of the instruments. In fact, the evidence is that plaintiff's attorney asked Mr. Doll to get an attorney to look after his interest, that he might be fully protected. The evidence concerning duress is substantially as follows: Doll testified that on October 15: "I went down to Mr. Riney's house about 11 o'clock, and Mr. Riney came out of the house. * We talked about the car, and he told me this was only a second mortgage and he wanted a mortgage on the other place. I told him my wife would not listen to that. I started to go to the car, and Mr. Riney said: 'I am not through with you.' And he reached in and shut the car off. He said. 'Any man that takes another man's car out like you did and wrecks it is a d- dirty dog as ever lived.' kind of a contract being drawn, because he thought it was not to Doll's best interest; that the damages were too high; that he did not tell Doll to sign it, but it was not his way of a settlement, he wanted to see what the damages were; that at the time the contract, note, and mortgage were signed, Doll did not appear to be nervous and excited, although prior to that time he had been and seemed to be worried about something. At the close of the testimony plaintiff demurred to the evidence as not being sufficient to show duress because of a threat of person prosecution. The court thought there was enough evidence to go to the jury on the question of threat of imprisonment and overruled the demurrer on that point, but sustained it so far as it went to the question of threats of personal violence, but he did not strike out the testimony pertaining thereto, permitting it to go to the jury for whatever light it might throw upon the defense of duress by threatened imprisonment. The evidence on behalf of plaintiff contradicted defendant's evidence as to any threats, but we have stated that most favorable to the defendants, as shown by the abstract. [1] Appellant complains, first, that the court sustained the demurrer as to the threats of personal violence. It will be noted that the only threat of personal violence made by Riney was in the alternative—in the event he could not get redress by law-and in the future, after he had first tried redress by law, which would necessarily mean some (225 P.) time (several months or possibly two or three years). This was about 11 o'clock in the morning. The papers were not drawn nor executed until 5 or 6 o'clock in the evening. There was no evidence of threatened imminent personal violence when the papers were drawn and executed. The court did not err in taking this question from the jury. Gabbey v. Forgeus, 38 Kan. 62, 15 Pac. 866. Appellant further complains of the court's second instruction, defining "duress," which reads: "You are instructed that the defense pleaded by the defendants is what is generally termed 'duress,' and 'duress' is defined as that degree of constraint or danger, either actually inflicted, or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firm ness." to produce that condition, the age, sex, state whether the oppression causing the incompetence to contract be produced by what was formerly deemed duress, and relievable at law as such, or wrongful compulsion remediable only by an appeal to a court of equity. According to this view, what constitutes duress is matter of law; whether duress existed in the particular transaction is usually matter of fact, though of course the means may be so oppressive as to render the result an inference of law. There is no legal standard of resistance with which the person acted upon must comply at the peril of being remediless for a wrong done to him, and no general rule as to the sufficiency of facts to produce duress. The question in each case is: Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Under this theory duress is to be tested, not by the nature of the threats, but rather by the state of mind This definition of duress was taken evident-induced thereby in the victim. The means used ly from the opinion of this court in McCormick v. Dalton, 53 Kan. 146, 149, 35 Pac. 1113, and quoted with approval in Banking Co. v. Veale, 84 Kan. 385, 392, 114 Pac. 229, 37 L. R. A. (N. S.) 540, and is one which has been used on recent occasions by the courts of other states (Wood v. Telephone Co., 223 Mo. 537, 123 S. W. 6; Kline v. Kline, 14 Ariz. 369, 128 Pac. 805), and was formerly quite generally recognized as correct (Ex parte William Wells, 18 How. [59 U. S.] 307, 15 L. Ed. 421; James & Haverstock v. Dalbey, 107 Iowa, 463, 78 N. W. 51; 2 Greenleaf on Evidence, § 301; 9 R. C. L. 714, 715). The courts now generally recognize that this definition is inaccurate for at least two specific reasons, viz.: First, experience has furnished no yardstick by which the firmness of the human will can be measured; and, second, even though that could be done, one having a weak will is as much entitled to the protection of the law as though his will were This court recognized this distinction in of ordinary firmness or of extraordinary firm- Williamson v. Ackerman, 77 Kan. 502, 94 ness. When one uses the bludgeon of duress Pac. 807, 20 L. R. A. (N. S.) 484, and thorto break the will of his adversary and there-oughly committed itself to the modern defby gains a wrongful or unconscionable advantage, a court will relieve the victim of the consequences of the act he was thus forced to perform, whether his will be weak, requiring but one blow to shatter it, or whether it be of ordinary firmness, requiring several, or whether it be as adamant, requiring many. The courts now quite generally recognize the inaccuracy of defining duress by applying it to a person of ordinary firmness. In 9 R. C. L. 716, it is said: "By many if not most of the modern authorities, however, the true doctrine of duress is held to be that a contract obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress, See, also, Knight v. Brown, 137 Mich. 396, 100 N. W. 602; Nebraska Mutual Bond Ass'n V. Klee, 70 Neb. 383, 97 N. W. 476; Price v. Bank of Poynette, 144 Wis. 190, 128 N. W. 895; Radich v. Hutchins, 95 U. S. 210, 24 L. Ed. 409; Bank y. Loos, 142 Iowa, 1, 120 N. 162, 83 Atl. 103, 39 L. R. A. (N. S.) 421; W. 317; Sulzner v. C.-L. & M. Co., 234 Pa. Wilbur v. Blanchard, 22 Idaho, 517, 126 Pac. 1069. inition of duress, quoting approvingly (page 505 [94 Pac. 808]) from Galusha et al. v. Sherman et al., 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417: "There is no legal standard of resistance at his peril to protect himself. The question in which a party so circumstanced must exercise each case is: Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, and was such advantage thereby obtained?" Also in Milling Co. v. Gas & Electric Co., 115 Kan. 712, 225 Pac. 86, where it was said: "We have traveled far from the common-law duress of bodily imprisonment or fear of loss of life or member or of imprisonment, to the modern doctrine of involuntary payment. There must be unlawful coercion; but we are if I cannot do anything," I will give you a no longer restricted to goose flesh producing beating. Obviously this is not equivalent to agencies, and the mythical man of ordinary a threat of criminal prosecution. It should courage and firmness is no longer invoked as a standard." See, also, Bank v. Bay, 90 Kan. 506, 507, 135 Pac. 584, and Bank v. Francis, 100 Kan. 225, 230, 164 Pac. 146. be remembered that Doll had damaged Riney's car under circumstances which caused Riney to think Doll was liable to him for damages to the amount of the injury, and this much Doll had previously admitted to Indeed, as early as 1887, in Gabbey v. For-Riney when he talked with him October 12th. geus, 38 Kan. 62, 15 Pac. 866, this court ap-On the 15th the talk was about how to fix it proved instructions set out in full in the up. Riney complained about Doll giving him opinion (pages 65 to 67 [15 Pac. 866]) giving a second mortgage and wanted a mortgage on the test for duress in conformity to the so- another place. It may be noted that, whatcalled modern definition. Though the def- ever Riney's threats were, they were not sufinition of duress given by the court is erro- ficient to overcome Doll's will as to the kind neous it does not necessarily follow that the of mortgage he gave, for, when he settled with giving of it constitutes reversible error. In Riney's attorney that evening, he gave a this case there is no intimation in the rec- second mortgage, the kind he wanted to give ord that defendants are not persons of ordi- when he talked to Riney and the kind Riney nary firmness. If they are, the instruction told him he did not want. Riney's threat was correct as applied to them, though inac- was, if you do not fix this up with my atcurate as a general definition of duress. If torney, "I will prosecute you to the fullest they are persons of extraordinary firmness, extent of the law," which is equivalent to saythe instruction is favorable to them and they ing that he would use whatever provisions cannot complain. By not showing that they of the law were available to him, and that do not measure up to the standards of a is accompanied by a suggestion that he was person of ordinary firmness, defendants have uncertain what could be done by legal pronot shown that the instruction was erroneous ceedings. Riney, of course, had a right to to them, and cases are not reversed in this use whatever provisions of the law were court unless error is shown. But we shall available to him. It is not duress for one not base our decision on this point, for to do person to threaten another that he will use so would recognize that the term "a person the law in so far as it is applicable to acof ordinary firmness" has a definite practical complish what he regards to be his rights. meaning, which the modern authorities deny. This question has been thoroughly settled, Perhaps the reason the modern authorities not only by our own court, but by the courts deny the existence of the mythical man of generally. See Kiler v. Wohletz, 79 Kan. 716, ordinary firmness is not so much from the 720, 101 Pac. 474, L. R. A. 1915B, 11; Banking lack of the power of courts to create and de- Co. v. Veale, 84 Kan. 385, 393, 114 Pac. 229, fine such an individual if by so doing the 37 L. R. A. (N. S.) 540; Kimball Co. v. ends of justice would be better promoted-Raw, 7 Kan. App. 17, 19, 51 Pac. 789, and just as we have the man of ordinary pru-cases cited. dence in negligence cases-but because of his [5] It is true that Doll testified that he uselessness in the administration of justice. was afraid Riney would get out a criminal His presence in court is to defeat justice in action against him, but that is not what a case where the victim of duress does not Riney told him. He at no time mentioned a have sufficient will power to measure up to criminal action. Under this evidence, the that standard, and such a person is entitled court would have been justified in sustainto the protection of a court as much as any ing a demurrer. Not having done so, but one. Indeed, a court of equity should be having submitted the case to the jury, the even more solicitous of a wrong to a person fact that the court gave an instruction inof weak will or mentality. accurate as applying to duress generally, though possibly accurate as applying to this particular case, would not justify this court in ordering a new trial. [2-4] But let us examine this threat of prosecution as testified to by Doll, the only witness who pretends to quote it. Riney is quoted as saying to Doll, if you do not fix this up with my attorney "I will prosecute you to the fullest extent of the law, and then, Finding no material error in the record, the judgment of the court below is affirmed. All the Justices concurring. |