Continental Ins. Co. v. Parkes

• Decision Date: 01 February 1905
• Parties: CONTINENTAL INS. CO. v. PARKES.
• Court: Alabama Supreme Court

39 So. 204

142 Ala. 650

CONTINENTAL INS. CO. v. PARKES.

Supreme Court of Alabama

February 1, 1905

Appeal from City Court of Birmingham. W. W. Wilkerson, Judge.

Action by Margaret N. Parkes against the Continental Insurance Company. From a judgment for plaintiff, defendant appeals. Reversed.

Rehearing denied June 30, 1905.

The defendant pleaded the general issue, and in addition thereto many special pleas, among which special pleas were the following: "(8) And for further plea in this behalf the defendant says the plaintiff ought not to recover in this action upon the contract sued on by reason of anything alleged in the complaint. (9) And for further answer this defendant says that in and by the terms of the policy described in the complaint it is provided that the contract named in the complaint may be canceled. And this defendant says that in accordance with the terms of said policy in regard to cancellation this defendant, before the loss described in the complaint had occurred, had canceled and taken up the said policy, and it was no longer in force. Wherefore this defendant says that plaintiff ought not to have and recover in this action. (10) And for further answer to the complaint this defendant says that it never did issue any policy to Margaret N. Parkes, the plaintiff; that it did issue to one A. B. Parkes a policy of insurance of date October 29, 1898, upon a certain dwelling house and furniture therein, with condition, 'Loss, if any, payable to Robert Mauchlin, mortgagee'; that afterwards the said policy on the demand of this defendant, notice of cancellation having been previously given, was surrendered on, to-wit, the 1st day of September, 1899, to this defendant, and was duly canceled and returned to this defendant; and defendant says that for, to-wit, 30 days prior to the loss named in the complaint, there was no policy issued by it in force. Wherefore this defendant says that plaintiff ought not to have and recover by reason of any transaction in regard to said policy of insurance. * * * (15) Defendant says for answer to the complaint, that on, to-wit, November 1, 1898 this defendant issued to one A. B. Parkes a policy as described therein upon the property mentioned in the complaint, upon his two-story house, valued at $1,800, and upon the furniture therein, valued at $1,000, the said A. B Parkes being then the husband of the plaintiff; that in and by the terms of the said policy, loss, if any, was made payable to Robert Mauchlin, as mortgagee, as his interest might appear; that afterwards, on, to-wit, November 25, 1898 the said Robert Mauchlin came into the office of the agent of defendant in Birmingham, Ala., bringing said policy with him and stated that M. N. Parkes was the owner of the property insured, and that the name of the mortgagee was Janette Mauchlin, and then and there the secretary of defendant's agent, one Charles Mell, at the instance of said Robert Mauchlin, the said Mell then and there having authority of the defendant to do so, attached to the face of said policy a green printed slip, stating in effect that M. N. Parkes should be the name of the assured, and that loss, if any, should be payable to Mrs. Janette Mauchlin as her interest may appear; that there was then present only the said Robert Mauchlin and the said Mell; that said Robert Mauchlin took away with him the said policy so changed, and defendant says that thereafter said Janette Mauchlin kept possession of the said policy of insurance, and it was not thereafter in the possession of plaintiff; that by the terms of said policy defendant, on notice for the space of five days, had the right to cancel said policy, and that defendant, on, to-wit, August 24, 1899, gave notice to Janette Mauchlin that it would cancel said policy, and on, to-wit, September 1, 1899, on demand of the defendant, the said Janette Mauchlin, the mortgagee named in the said policy so altered, surrendered said policy to this defendant, and the same was by this defendant duly canceled. Wherefore defendant says that, at the time when the said property alleged to have been insured was burned, the said policy was not in force, and plaintiff ought not to recover."

Ward and Houghton, for appellant.

White & Sons, for appellee.

TYSON J.

Action on policy of fire insurance. To the complaint the defendant interposed the plea of the general issue and a number of special pleas. Plea 8, to which a demurrer was sustained, neither denies nor confesses and avoids the allegations of the complaint. The demurrer was properly sustained to it.

Plea 9 was also faulty in not setting out the terms of the policy sued on, so that the court could determine the right of the defendant to cancel it and thereby terminate its liability thereon. Whether the cancellation asserted was in accordance with the terms of the policy was a question of law, and the court could not decide that question unless the terms of the policy under which defendant asserted its right of cancellation were set out in the plea. Hardy v. Br. Bank, 15 Ala. 727; Mead v. Hughes' Adm'r, 15 Ala. 141, 1 Am. Rep. 123.

Plea 10 was in substance and legal effect a plea of non est factum, and was not sworn to. The complaint is in Code form, and implies an action in the name of the assured mentioned in the policy issued to the plaintiff. Feibelman v. M. F. I. Co., 108 Ala. 180, 19 South 540.

It appears from the averments of the fifteenth plea that by the terms and conditions of the policy the defendant reserved the right to cancel it upon giving the assured five days' notice. It is also shown by the plea that the property insured was the property of the plaintiff, and that she was named in the policy as the assured, and it is not averred that notice of cancellation was given to her by defendant. On the contrary, the notice was only given to Janette Mauchlin, who was named as mortgagee, to whom "loss was payable as her interest might appear." It does not appear what was the amount of her mortgage debt, if that were important, or that defendant had the right under the policy to give the notice to Mrs. Mauchlin as the representative of the assured, the plaintiff, or that she had the right to surrender it for cancellation without the consent or authority of plaintiff. For clearly the facts alleged cannot be construed that Mrs. Mauchlin was plaintiff's agent in respect to surrendering the policy or receiving the notice. The fact that she had possession of the policy, we apprehend, did not confer upon her the right to surrender it for cancellation without the consent of plaintiff.

It is true the text in 16 Am. & Eng. Ency. Law (2d Ed.) p. 873 relied upon by appellant as sustaining the sufficiency of the plea, lays down broadly the rule that, "when by the terms of the policy the loss is made payable to a mortgagee of the insured premises, notice to such mortgagee of the cancellation of the policy is sufficient, and it is also not necessary to notify the owner." The only authority cited to support this proposition is the case of Mueller v. S. F. I. Co., 87 Pa. 399. An examination of that case discloses that it does not support the proposition. There the policy authorized the defendant to give the notice...