Cowart v. Capital City Ins. Co.

• Decision Date: 28 June 1897
• Citation: 114 Ala. 356,22 So. 574
• Parties: COWART v. CAPITAL CITY INS. CO.
• Court: Alabama Supreme Court

22 So. 574

114 Ala. 356

COWART v. CAPITAL CITY INS. CO.

Supreme Court of Alabama

June 28, 1897

Appeal from circuit court, Pike county; John R. Tyson, Judge.

Action by A. J. Cowart against the Capital City Insurance Company. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals. Reversed and remanded.

Brickell C.J., dissenting.

John D Gardner, for appellant.

Chas P. Jones, for appellee.

HEAD J.

Action on a policy of fire insurance covering plaintiff's dwelling house and furniture therein. Three defenses were interposed by special pleas, on which issue was joined: (1) That plaintiff effected prior insurance on the property, or a part of it, contrary to a condition of the policy rendering it void for that cause; (2) that the plaintiff executed a mortgage on a part of the property, contrary to a like prohibition; (3) that plaintiff did not own the entire interest in the property at the time of said alleged loss. The first only of these defenses has, under the evidence, any show of merit. As to the second defense, before the policy was written the plaintiff had executed a mortgage upon the dwelling house insured. The condition in the policy relied on is in the following words: "Or if the property shall be sold or transferred, or any change take place in the title or possession, whether by legal process or judicial decree, or voluntary transfer or conveyance, *** then this policy shall be void." Conceding that the execution of a mortgage would violate this condition, it is manifest that it must have been executed subsequently to the writing of the policy, in order to come within the terms and meaning of the condition; and the plea, as it was written, will be construed to aver such subsequent execution. The language of the condition admits of no other construction. Besides, the evidence shows, without conflict, that plaintiff informed the agent of defendant who wrote and delivered the policy, at the time, of the existence of the mortgage, evidence of which was admitted without objection, whereby a special replication, if one was necessary, was waived. We are not sure that we catch the point of the third defense, and we have no brief to advise us. If it is intended to raise the question whether or not the plaintiff was the party really interested in the cause of action, and entitled to sue, under section 2594 of the Code, it is not sworn to. But, waiving that, the undisputed evidence shows that he was. He was the sole general owner of the property, and the policy was payable to him absolutely. If intended to raise the immaterial issue (immaterial so far as the plea shows) whether or not the plaintiff owned the "entire interest in the property at the time of the loss," it is likewise overcome by the undisputed proof. Taking this plea most strongly against the pleader, it has no relation to incumbrances on the land; the sole general ownership being in the plaintiff.

As to the first defense: The policy contains the condition, that "If there shall be any prior or subsequent insurance upon the property hereby insured, or on any part thereof, *** without the assent of the company indorsed hereon, then this policy shall be void." The undisputed evidence shows the following facts: The policy in suit was written April 1 1891. On June 29, 1889, the plaintiff borrowed from Louise F. Kennedy $3,000, and executed to her a mortgage on 615 acres of land, on which the insured dwelling house was situated, to secure the same, payable June 29, 1894. This loan was negotiated by John Gamble, as agent of the plaintiff, through Barker & Holleman. Gamble testified as follows: "The plaintiff gave him a gross sum of money as his compensation for negotiating said loan, out of which witness was to pay...