## Facts

- Sebastiano Cali owned a building in Leominster, Massachusetts and mortgaged it to the Fitchburg Co-operative Bank.
- Cali procured a fire insurance policy on the building and delivered it payable to the bank as mortgagee.
- The policy contained a standard union mortgage clause stating that no act or default of anyone other than the mortgagee would affect the mortgagee’s right to recover.
- The mortgage had not been discharged and the policy had not been canceled when the building burned.
- Cali later conveyed the property to Maria Cali without the insurer’s consent, but the building remained subject to the mortgage and the policy payable to the bank.
- Cali was indicted, tried, and convicted under G.L. c. 266, § 10 for burning a building insured against fire with intent to injure the insurer.
- Cali excepted to the denial of a directed verdict and to certain trial rulings, including evidentiary rulings and refusal of requested instructions.

## Issues

1. Whether there was sufficient evidence that the building was “insured against loss or damage by fire” at the time of the burning as required by G.L. c. 266, § 10.
2. Whether the conveyance of the property to a new owner without the insurer’s consent defeated the “insured building” element where the policy was payable to a mortgagee under a union mortgage clause.
3. Whether the trial judge erred in denying the defendant’s motion for a directed verdict and in the challenged trial rulings.

## Decision

- The Supreme Judicial Court overruled the defendant’s exceptions and affirmed the conviction.
- The evidence permitted a finding that the building was insured at the time of the burning because the policy remained uncanceled and enforceable by the mortgagee.
- The conveyance to Maria Cali, and any acts that might have avoided coverage as to the mortgagor or owner, did not affect the mortgagee’s independent right to recover under the union mortgage clause.
- The motion for a directed verdict was properly denied because the evidence, viewed favorably to the Commonwealth, supported the statutory elements, including the existence of insurance exposure and the requisite intent.
- The challenged evidentiary rulings and refusal of instructions disclosed no reversible error.

## Legal Principles

- Under a standard (union) mortgage clause, the mortgagee has an independent contractual right to recover on the policy, not defeated by acts or defaults of the mortgagor or owner.
- For G.L. c. 266, § 10, a building is “insured” if, at the time of the burning, there exists a valid, enforceable insurance obligation to any insured interest (including a mortgagee), even if coverage might be forfeited as to the mortgagor or owner.
- Where the policy remains uncanceled and the mortgage remains undischarged, the insurer’s continuing exposure to the mortgagee can satisfy the insurance element of the criminal offense.

## Conclusion

The court held that the building was “insured” for purposes of G.L. c. 266, § 10 because an uncanceled fire policy payable to the mortgagee remained enforceable under a union mortgage clause despite the mortgagor’s conveyance without consent; the conviction and trial rulings were affirmed.


Commonwealth v. Cali, 247 Mass. 20, 141 N.E. 510 (1923)