Alamo Fire Ins. Co. v. Davis

• Decision Date: 23 February 1898
• Citation: 45 S.W. 604
• Parties: ALAMO FIRE INS. CO. et al. v. DAVIS et al.
• Court: Texas Court of Appeals

45 S.W. 604

ALAMO FIRE INS. CO. et al. v. DAVIS et al.

Court of Civil Appeals of Texas.

February 23, 1898.

Error from district court, Bell county; John M. Furman, Judge.

Action by A. Davis and another, for themselves and for the use and benefit of the Southern Home Building & Loan Association of Atlanta, Ga., against the Alamo Fire Insurance Company and another. From the judgment, defendants appeal. Reversed and remanded.

Wm. Thompson, for plaintiffs in error. Harris & Saunders, for defendants in error.

KEY, J.

This suit was instituted by A. Davis and Florence I. Davis, for themselves and for the use and benefit of the Southern Home Building & Loan Association, of Atlanta, Ga., against the Alamo Fire Insurance Company and Germania Insurance Company, upon a fire insurance policy for $1,000. The court rendered judgment for the plaintiffs for $860 for the use and benefit of the Southern Home Building & Loan Association, and $140 for the use and benefit of Florence I. Davis.

There is fundamental error in the record, which requires a reversal of the judgment. The plaintiffs alleged in their petition that the policy was issued to A. Davis, insuring him against loss or damage by fire on a house described in the petition, but the only attempt to show any interest in the Southern Home Building & Loan Association is contained in the following paragraph in the petition: "That afterwards, on, to wit, the ____ day of ____, 189_, the said A. Davis executed a mortgage upon said house and lot aforesaid to the said Southern Home Building and Loan Association, of Atlanta, Ga., to secure the sum of ____ dollars, and, with the consent of said Alamo Fire Insurance Company, of San Antonio, Texas, assigned and transferred said policy to the said Southern Home Building and Loan Association of Atlanta, Ga., said transfer being legally made by and in accordance with the terms and conditions of said policy." A contract of insurance is purely one of indemnity, and one seeking to collect an insurance policy must show that he had an insurable interest in the subject of insurance at the time the loss occurred. In other words, a plaintiff, seeking to collect a fire insurance policy, must show that he was the owner of the property, or was otherwise interested in it, at the time of its destruction; and unless he alleges such facts in his petition no cause of action will be stated, and therefore no judgment can be rendered in his behalf. May, Ins. §§ 2, 71, 72; 11 Am. & Eng. Enc. Law, p. 312; 5 Lawson, Rights, Rem. & Prac. §§ 2037, 2095; Insurance Co. v. Everett (Tex. Civ. App.) 36 S. W. 125; Bevin v. Insurance Co., 23 Conn. 244; Quarrier v. Insurance Co., 10 W. Va. 507; Freeman v. Insurance Co., 38 Barb. 247; Chrisman v. Insurance Co., 16 Or. 284, 18 Pac. 466; Dickerman v. Insurance Co. (Vt.) 30 Atl. 808. The averments relied on to authorize a recovery in behalf of the Southern Home Building & Loan Association, and set out above, show that the policy of insurance had been transferred to said association; but they do not show that it had any interest in the property covered by the insurance, and certainly not an interest to the extent of $860, the amount for which the court rendered judgment in behalf of said association. The averment that Davis, the owner of the property, had executed a mortgage to the building and loan association, amounts to nothing, because the amount of the debt secured by the mortgage is not stated. In so far as the interest of the building and loan association is concerned, the suit is by a mortgagee; and before it could recover, or anything could be recovered in its behalf, it was necessary to allege the amount of its mortgage debt. The petition does not show that the mortgage was given to secure any particular sum, and therefore it does not show that the building and loan association had any definite interest in the building at the time it was destroyed by fire. Facts not alleged cannot form the basis of a judgment. Hall v. Jackson, 3 Tex. 309; Chrisman v. Miller, 15 Tex. 161; Wallace v. Bogel, 62 Tex. 638; Moody v. Benge, 28 Tex. 545; Malone v. Craig, 22 Tex. 609; Jennings v. Moss, 4 Tex. 452; Sneed v. Moodie, 24 Tex. 159; Telegraph Co. v. Henry, 87 Tex. 167, 27 S. W. 63. It is true, in this case, that the petition was not challenged by demurrer or exception. At any rate, the record does not show that the court ruled upon the exceptions interposed to the petition. In fact, this defect in the petition was not urged in the court below, or in this court; but, when a...