Continental Ins. Co. v. Brooks

• Court: Alabama Supreme Court
• Writing for the Court: HARALSON, J.
• Citation: Continental Ins. Co. v. Brooks, 131 Ala. 614, 30 So. 876 (Ala. 1901)
• Decision Date: 26 November 1901
• Parties: CONTINENTAL INS. CO. v. BROOKS.

30 So. 876

131 Ala. 614

CONTINENTAL INS. CO. v. BROOKS.

Supreme Court of Alabama

November 26, 1901

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Action by M. M. Brooks against the Continental Insurance Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The complaint is in Code form on a policy of insurance on a dwelling house, against fire.

The defendant filed, besides the general issue, nine other special pleas, the substance of which was,-copying from the 10th plea,-"that under and by the terms of the policy unless otherwise provided, by agreement indorsed thereon or added thereto, should be void, if any change other than by the death of the insured, take place in the interest, title or possession of the subject of insurance, except change of occupants without increase of hazard," etc. It was averred that this condition of the policy had been broken by the plaintiff, in that, after the policy was issued and delivered to him, and before the fire which destroyed the property, the plaintiff entered into a contract with Fox Henderson for the sale to him of the property insured; that under said contract, plaintiff put said Henderson in possession of said property and took his note, payable on demand, for the purchase money,-$2,436; that prior to the fire which destroyed the dwelling house, the plaintiff received from said Henderson, on said purchase money, the sum of $1,525, leaving a balance due thereon of $911; that said Henderson was in possession of said insured property under said contract of purchase, holding and claiming the same as his own, at the time the property was destroyed by fire; and the averment is added, "that there is no provision by agreement indorsed on said policy or added thereto with reference to or authorized the above change in interest title, or possession of the plaintiff in the insured property, and that by reason thereof, the said policy is void."

To these pleas, the plaintiff demurred, assigning many grounds but the demurrer is not shown to have been acted on by the court.

Thereupon the plaintiff filed a number of replications, among them, the one identified by the number 3 and letter A.

The plaintiff afterwards withdrew each of his replications except the two last named.

The defendant demurred to each of these, which was sustained to the one marked A and overruled as to the one numbered 3.

The third replication set up that "prior to the loss complained of in the complaint, F. M. Pennington was the general agent of the defendant, for this vicinity, with authority from defendant to write insurance, collect premiums, and act generally as its agent for such purposes and for the purpose of making insurance contracts for said defendant, with authority to waive the condition set out in said pleas, and was the agent of defendant who entered into the contract sued upon, on behalf of defendant; that he was supplied with blank policies, signed by the defendant and its secretary, to be binding on defendant, when countersigned by said F. M. Pennington; that the policy of insurance sued upon, was one of said policies so issued to said Pennington by defendant, and was drawn up and became binding on defendant upon its having been countersigned by said F. M. Pennington; and plaintiff alleges, that prior to the loss complained of, said Pennington, being such agent of defendant, was informed of the matters and things contained in said pleas of defendant, and agreed and consented thereto; and plaintiff avers that defendant thereby waived the condition of said policy as set out in said pleas."

The defendant, its demurrer to the third replication being overruled, replied, in substance, in two replications, that at the time of the alleged waiver by said Pennington, he was not the agent of defendant.

These rejoinders, on motion of plaintiff, were stricken, on the ground that said rejoinders to said replication 3, was a mere joinder of issue thereon.

The case was tried on the plea of the general issue, and on joinder of issue on said third replication of the plaintiff.

Carmichael & Brannen, for appellant.

Foster, Samford & Carroll, for appellee.

HARALSON J.

1. The complaint being in Code form, contains a sufficient averment of an insurable interest in the plaintiff. Commercial Fire Ins. Co. v. Capital City Ins. Co., 81 Ala. 320, 8 So. 222, 60 Am. Rep. 162.

The plaintiff had an insurable interest in the property. He had contracted to sell it to Henderson, a deed to be made when the entire purchase money was paid. A deed had not been made and there remained due to plaintiff on the purchase money, about $900, the insurance on the property destroyed being $500. He had an equitable lien or mortgage on the property for the payment of his debt. Hester v. Hunnicutt, 104 Ala....