Brown

On February 5, 1928, a building on which appellant carried insurance, known as the Occidental Hotel, in the city of Hayward, Cal., was partially destroyed by Are. To the policy was attached a rider, commonly referred to as a “mortgagee clause,” making the loss, if any, payable to the mortgagee as his interest might appear. Appellee, the holder of the first mortgage, brought this action to recover the damage he had sustained from the destruction of his security. Jury trial was duly waived, and, after hearing the evidence, the court, without special findings, entered judgment in his favor for $12,500, with interest and costs.

One of the assignments rests upon the fact that in November, 1927, the hotel had been elosed under a court order in an abatement proceeding brought against the owner pursuant to the National Prohibition Act (27 USCA) and was at the time of the fire in charge of a watchman or keeper appointed by the court. In that suit appellee was formally joined as a eodefendant with the owner, Louis M. Gilabert, but he was not therein charged with any wrongdoing. The rider referred to expressly provided that the loss or damage, if any, should be payable to Harry Brown, first…