Creed v. Sun Fire Office of London

• Decision Date: 19 December 1893
• Citation: 101 Ala. 522,14 So. 323
• Parties: CREED ET AL. v. SUN FIRE OFFICE OF LONDON.
• Court: Alabama Supreme Court

14 So. 323

101 Ala. 522

CREED ET AL. v. SUN FIRE OFFICE OF LONDON.

Supreme Court of Alabama

December 19, 1893

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

Action by Katie Creed and Mattie Flinn against the Sun Fire Office of London to recover $2,000, the amount claimed on a policy of insurance on a building situated near the city of Montgomery, which was insured by the defendant against loss or injury by fire, and which was, before the bringing of said suit, entirely destroyed by fire. There was judgment for defendant, and plaintiffs appeal. Reversed.

The defendant pleaded several pleas. By the first plea it pleaded the general issue. In the third plea it averred that by the terms of said policy it was provided that the entire policy was to be void if the insured concealed or misrepresented any material fact concerning the insurance, or the subject thereof; and further averred that the insured had concealed a material fact concerning the subject of the insurance, in that the plaintiffs applied for and took out said insurance upon the house described in the complaint as their property whereas in truth it was, at the time of the taking out of said policy, and at the time of said fire, the property of the estate of one T. W. Creed, who died intestate before the taking out of said insurance policy; and that the said T. W Creed left surviving him brothers and sisters, heirs at law and that neither of the plaintiffs was a sister of the deceased; and that the plaintiffs concealed from the defendant the fact that said house was the property of the said T. W. Creed, deceased. In the sixth plea the defendant set up as a defense that the fire by which the building was destroyed was caused by the fault of the plaintiffs. The second, fourth, and fifth pleas are in the following language: "Second. It avers and states that in and by the terms of the policy sued on in this case it is expressly provided, among other things, that the entire policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void if the interest of the insured be other than the unconditional and sole ownership of the property insured; and defendant avers that the said insured took out the said policy upon the said house described in said complaint as their property, and that at the time the said insurance occurred, and at the time the said building was destroyed by fire, the said house was not the property of the said plaintiffs; and defendant further avers that the said policy contains no agreement indorsed thereon or added thereto that the plaintiffs might insure the said property although they were not the sole and unconditional owners of the said property. Fourth. And, further answering said complaint, defendant says that in and by the terms of the policy sued on in said complaint it is expressly provided that the entire policy shall be void if the interest of the insured in the property be not truly stated therein, and defendant avers that the interest of the said insured is not truly stated in the said policy; that the said property is insured as the property of the said plaintiffs, whereas in truth and in fact the said property was not the property of the said plaintiffs; that the said Mattie Flinn had no interest in the said property; that the said house insured formerly belonged to one T. W. Creed, who had died intestate leaving certain brothers and sisters as his heirs at law that the only interest that the said plaintiff Katie Creed had in and to the said property was the interest which she as the widow of the said T. W. Creed might acquire therein, and the said Mattie Flinn had no interest therein; wherefore this defendant avers that the interest of the said plaintiffs, the insured, was not truly stated in the said policy, and that the same is void. Fifth. And, further answering said complaint, this defendant avers that in and by the terms of said policy it is expressly provided that, unless it is provided by agreement indorsed thereon or added thereto, the said policy shall be void if the subject of the insurance be a building on ground not owned by the insured in fee simple; and defendant avers that the subject of insurance in this instance was a building on a certain lot of land near the city of Montgomery, Alabama; that the said lot of land was not at the time of taking out said policy, or at the time of said loss, nor at any time after the taking out of the said policy, owned by said plaintiffs in fee simple, but that, on the contrary, the said ground was owned by the heirs at law of one T. W. Creed, then lately deceased; and that plaintiffs were not the heirs at law of said T. W. Creed. And defendant further avers that no agreement was indorsed on the said policy, or added thereto, providing that the subject of insurance might be on ground not owned by the insured in fee simple; and that the defendant had no notice at the time of the issuance of said policy, nor at any time prior to the burning of said building, that the plaintiffs did not own the ground upon which the said building was situate." The plaintiffs joined issue on the first, third, and sixth pleas, and to the second, fourth, and fifth pleas they filed the following replication: "That at the time of taking out the policy of insurance sued on in this cause, Katie Creed, one of the plaintiffs, was the widow of T. W. Creed, then lately deceased, who died seised in fee of the property insured, and that she is still such widow; that as such widow she had and has an interest by way of dower and homestead in the property covered by said insurance; that she had such interest at the time of the application for and the issuance of said policy by defendant; that at the time of the application for and the issuance of said policy, Mattie Flinn, the other plaintiff in this cause, was a large creditor of the estate of T. W. Creed in the amount of, to wit, about two thousand dollars, and that she was such creditor at the time of the burning of said house insured and described in the complaint in this cause, and such claim of said Mattie Flinn has been ever since the taking out of the policy of insurance sued on, and is now, a valid and subsisting demand against the estate of T. W. Creed, deceased; that there is not and was not at the time of the application for and the issuance of the policy sued on in this cause, enough personal property belonging to the estate of said T. W. Creed to pay the debts due and outstanding against said estate. And plaintiffs aver that they applied to one J. B. Trimble, who was at the time of said application the regularly constituted agent of defendant corporation, for said policy on said building; that said J. B. Trimble well knew at the time plaintiffs applied for said policy, and at the time of the issuance and delivery to them by him as such agent of defendant corporation, that the said property so insured was the property of the estate of T. W. Creed, deceased, and that he was at...