American Equitable Assur. Co. of New York v. Powderly Coal & Lumber Co.

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 382.
• Parties: AMERICAN EQUITABLE ASSUR. CO. OF NEW YORK v. POWDERLY COAL & LUMBER CO.
• Court: Alabama Supreme Court

128 So. 225

221 Ala. 280

AMERICAN EQUITABLE ASSUR. CO. OF NEW YORK v. POWDERLY COAL & LUMBER CO.

6 Div. 382.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied May 22, 1930.

Appeal from Circuit Court, Jefferson County; Gardner Goodwyn, Judge.

Action on a policy of fire insurance by the Powderly Coal & Lumber Company against the American Equitable Assurance Company of New York. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellant.

O. S Finch and Jim Gibson, both of Birmingham, for appellee.

GARDNER J.

The suit was on a fire insurance policy. From a judgment for the plaintiff, defendant appeals.

The complaint is substantially in Code form, and is sufficient. Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am. Rep. 162.

We so construe its averments as disclosing the insurance policy issued direct to plaintiff as the assured. In proof of the complaint, plaintiff offered a policy issued to Mrs. Nattie Bailey which contained a New York standard loss payable clause to plaintiff as its interest may appear. We think the defendant's objection to the introduction of this policy upon the ground of a variance between the allegation and such proof should have been sustained. It was not the policy declared upon in the complaint. Though not here in point, the recent case of Tarrant Land Co. v. Palmetto Fire Insurance Company (Ala. Sup.) 125 So. 807, considering such standard loss payable clause, is of interest in this connection. This clause expressly provides that as far as the interest of the payee therein is concerned the policy shall not be invalidated by any act or neglect of the owner nor by any change in the title or ownership and other matters not necessary here to note. There were numerous pleas interposed by defendant which were appropriate under the complaint as framed and as to which the court erred in sustaining demurrer thereto, though many of them would be inappropriate under the facts as here disclosed. While the erroneous ruling as to the introduction of the policy suffices for a reversal of the cause, yet in view of another trial we feel that more should be said, at least in the way of a statement of a general view of the case.

Plaintiff's evidence tended to show that one Swinney had a contract for remodeling a dwelling house in Bessemer, formerly owned by J A. Bailey, now deceased. Bailey died in Florida, but at the time of his death was living with his wife and children, some of whom were minors, at Shannon. This house and lot in Bessemer, its value at the time not appearing, constituted his estate, but was not his homestead. The widow was duly appointed and qualified as administratrix of the estate, but nothing further was done in the way of administration. No dower had been assigned and no effort at selection of a homestead. Swinney's contract for remodeling the house for a lump sum was verbal and with the widow. He was unable to finance, and at his request plaintiff furnished material and also advanced some funds to pay laborers on this job. As the work progressed plaintiff desired protection from destruction of the premises by fire and applied to one Hendrix, agent of defendant company and who is shown to have had sufficient authority to qualify him as general agent of the company under the decisions of this court. Yorkshire Ins. Co. v. Gazis, 219 Ala. 96, 121 So. 84. We may here add, by way of parenthesis, that as to the person Crittenden, his authority is limited and not within the influence of the above-noted authority. Prine v. Am. Cent. Ins. Co., 171 Ala. 343, 2nd headnote, 54 So. 547.

Appellant insists that under the proof plaintiff had no insurable interest, and therefore the policy is void. Pope v. Glenn Falls Ins. Co., 136 Ala. 670, 34 So. 29, 30; Commercial Fire Ins. Co. v. Capital City Ins. Co., supra. Plaintiff's right as to the property bears relation to those of Swinney, the contractor. Le Grand v Hubbard, 216 Ala. 164, 112 So. 826. "Whoever *** may fairly be said to have a reasonable expectation of deriving pecuniary advantage from the preservation of the subject-matter of insurance, whether that advantage inures to him personally or as the representative of the rights or interests of another, has an insurable interest." American Ins. Co. v. Newberry, 215 Ala. 587, 112 So. 195, 196. It is further recognized in this state that a simple contract creditor without a lien of any character, "without a jus in re or a jus in rem, owning a mere personal claim against his debtor, has not an insurable interest in the property of his debtor." Creed v. Sun Fire Office, 101 Ala. 522, 14 So. 323, 326, 23 L. R. A. 177, 46 Am. St. Rep. 134. This court has also held that "a person can have no insurable interest where his only right arises under a contract which is void or unenforceable either at law or in...