Aetna Ins. Co. v. Kennedy

• Decision Date: 10 June 1909
• Parties: ÆTNA INS. CO. v. KENNEDY.
• Court: Alabama Supreme Court

50 So. 73

161 Ala. 600

ÆTNA INS. CO. v. KENNEDY.

Supreme Court of Alabama

June 10, 1909

Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.

Action by T. J. Kennedy against the Ætna Insurance Company on a fire insurance policy. From a judgment for plaintiff, defendant appeals. Reversed.

Plea 2 was as follows: "Said plaintiff, at the time of the execution of the policy of insurance upon which this action is based, was not the owner of the property described in said policy of insurance and which is described in said complaint."

The replication to which demurrers were filed is as follows "(6) Comes the plaintiff, and for special replication No. 6 to plea No. 2 says: He was at the time of the issuance of said policy a stockholder in the Union Publishing Company a corporation, which was the owner of said property. Plaintiff's interest in said policy was more than double the value of the policy; and the fact that said property was owned by the Union Publishing Company was known to L. W Rorex, the general agent of the defendant, who made said contract, at the time it was made, and expressly waived the matter of a want of sole and unconditional ownership or other interest on plaintiff's part, save as a stockholder in said corporation. (2) The defendant waived the alleged breach of conditions in said plea set forth in this: That at the time of entering into said contract of insurance L. W. Rorex the general agent of the defendant and who made said contract of insurance, had notice of the alleged breach of such conditions at the time the contract was made, in that he had knowledge of facts leading him to believe, or giving good cause to believe, that the conditions were not met, and with such notice he failed to make inquiry which would have readily discovered all the facts as to such breach of conditions, and without inquiry, and knowing that in all probability the said conditions were not met, he wrote the contract, and thereby waived such breach of conditions."

The following demurrers were interposed: "(1) Said replication fails to show that plaintiff owned any interest in the property. (2) It fails to show that the plaintiff owned insurable interest in said property. (3) Said replication shows on its face that the policy of insurance sued on is void. (4) It fails to show or aver what, if any, interest the plaintiff had in such property, the subject of said insurance. (5) It shows that the agent of the defendant had no actual knowledge of the breach, but only information which, if pursued, would have led to such knowledge. (6) Said replication does not allege or show that the plaintiff made known to the defendant the facts which constitute a breach of conditions of said policy at the time said policy was issued."

Charge 20 is as follows: "I charge you, gentlemen of the jury, that there is no evidence before you from which you can ascertain the amount of plaintiff's loss or damage."

The property insured was the printing outfit belonging to the Union Publishing Company, a corporation, in which the present plaintiff was principal stockholder, and it seems that the presses were run by a gasoline engine, which appears to be contrary to the terms of the policy. L. W. Rorex was the agent of the defendant insurance company, and was also the cashier of the local bank. It was shown by the plaintiff, over the objection of the defendant, that after the issuance of the policy Rorex was in the building occupied by the printing company and saw the gasoline engine at work. It was further shown, over the objection of defendant, that Rorex was a subscriber to the newspaper and bought job printing supplies from the Union Publishing Company. Gross was permitted to testify over the objection of defendant that the Union Publishing Company and Mr. Kennedy gave his wife notes secured by a lien or mortgage on the property of the Union Publishing Company, and that he turned these notes over to Mr. Rorex as cashier of the bank.

Lawrence Cooper, George P. Cooper, and Brickell & Smith, for appellant.

Virgil Bouldin, for appellee.

SIMPSON J.

This action was brought by the appellee against the appellant on a fire insurance policy issued by the appellant. The first assignment of error insisted on is to the action of the court in overruling defendant's demurrer to the fifth replication to plea 2 to the complaint. The substance of plea 2 is that the plaintiff, at the time of the issuance of the policy, was not the owner of the property insured, and the replication is that he was the owner of stock in the company which owned the property, worth more than double the value of the policy, that said fact was known to the general agent of the company who issued the policy, and he expressly waived the matter of the want of sole and unconditional ownership. It has been expressly held that a stockholder in a corporation has an insurable interest in the property of the corporation, which will sustain a recovery on a policy issued to him on the property. 19 Cyc. 589; Warren v....