Cosmopolitan Fire Ins. Co. v. Gingold

• Decision Date: 21 December 1911
• Citation: 3 Ala.App. 537,57 So. 266
• Parties: COSMOPOLITAN FIRE INS. CO. v. GINGOLD.
• Court: Alabama Court of Appeals

57 So. 266

3 Ala.App. 537

COSMOPOLITAN FIRE INS. CO. v. GINGOLD.

Court of Appeals of Alabama

December 21, 1911

Appeal from Circuit Court, Jefferson County; A. A. Coleman, Judge.

Action by Sam Gingold against the Cosmopolitan Fire Insurance Company on two fire policies. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint is in the usual code form, with the averment additionally that the policies were originally issued to one David Caplan, and on, to wit, October 17, 1907, so transferred and assigned as to cover the property belonging to Rosen & Caplan. Plaintiff further avers that the interest of said David Caplan in said policies was sold, transferred and assigned to Isaac Rosen, and by said Isaac Rosen transferred and assigned to Sam Gingold, this plaintiff which policies of insurance were in force at the time the goods covered by them were damaged or destroyed by fire, and after loss had occurred said policies and claims thereunder were sold or assigned to this plaintiff.

Thompson & Thompson, for appellant.

W. T. Hill, for appellee.

WALKER P.J.

This action was upon two fire insurance policies originally issued to one David Caplan, the averments of two of the counts of the complaint showing that the policies were so transferred and assigned as to cover property belonging to Rosen &amp Caplan, and that the interest in the policies was sold transferred, and assigned to the plaintiff.

The evidence for the plaintiff tended to show that he became the owner of the policies after the fire. In the absence of any provision in the policies requiring such a transfer of ownership of a claim under the policies to be in writing, it could be made by parol; and, the policies being contracts for the payment of money, an action on them is properly prosecuted in the name of the party really interested. Code, § 2489; Insurance Co. of North America v. Forcheimer & Co., 86 Ala. 541, 5 So. 870; 19 Cyc. 634.

A number of the rulings of the court in the admission of evidence are assigned as errors. For obvious reasons some of those rulings cannot be sustained.

It was a wholly irrelevant inquiry as to whether other companies having policies covering the same property had paid claims under those policies, and evidence to this effect should not have been admitted over objections duly interposed by the defendant.

A clerk in the employment of the local agent of the defendant was examined in reference to the circumstances attending the attaching of slips on the face of the policies and the making of certain indorsements on them. The witness having stated that he remembered that the policies were given to him, he was asked, "For what purpose were they put in your possession?" An objection to this question was overruled, and the witness was permitted to answer it. The question was calculated to elicit, and in fact did elicit, a statement of the conclusion or opinion of the witness on the subject. The facts of the occurrence should have been brought out, leaving it for the jury to determine its purpose and effect. It is not denied that there were other rulings made in admitting evidence which are subject to criticism; but a detailed review of them is not deemed necessary, as the questions presented may be avoided in another trial.

The principal contested question in the case was as to the legal sufficiency of the evidence to show that the indorsements above referred to became parts of the policies sued on. Each of the policies contained the following provisions "This entire policy, unless otherwise provided by agreement indorsed hereon, or added hereto, shall be void * * * if any change, other than by the death of an insured, take place in the interest, title, or possession of the subject of insurance * * * whether by legal process or judgment or by voluntary act of the insured, or otherwise. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions as may be indorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions or conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached." On each of the policies offered in evidence was an indorsement, in part printed and the remainder written, the written part being in italics, as follows: "Consent by company to assignment of interest.--The Cosmopolitan Fire Insurance Co., of New York, hereby consents that the interest of David Caplan as owner of the property covered by this policy be assigned to Rosen & Caplan. Dated Oct. 17th, 1907. __________, ...